R v Chen & Others

On 17 October 2000 the four appellants, Messrs. Chen, Siregar, Ismunandar and Lau, were presented for trial in the District Court at Sydney before his Honour Judge Shadbolt. They were so presented upon a joint indictment charging that between about December 1997 and 14 October 1998 at Grant’s Beach, North Haven and elsewhere, they had been knowingly concerned in the importation into Australia of prohibited imports to which section 233B of the Customs Act 1901 applied, namely narcotic goods consisting of a commercial quantity of heroin being not less than the commercial quantity applicable to heroin.

All four of the appellants pleaded not guilty and they were put accordingly upon trial by jury. Each was represented at trial by counsel well experienced in the conduct of criminal trials. On 21 November 2000 the jury returned against each appellant a verdict of guilty as charged. On 16 February 2001 his Honour Judge Shadbolt sentenced each of the appellants to imprisonment for life, but fixing in the cases of the appellants Siregar and Ismunandar a non-parole period of 20 years.

Each appellant now challenges his conviction and seeks leave to appeal against the sentence passed upon him.

The relevant provisions of the Customs Act 1901 establish 1.5 kilograms as the minimum quantity of heroin constituting a commercial quantity of that drug. The quantity of heroin involved in the cases of the appellants was a gross weight of 389.9 kilograms, and a net weight of 252.3 kilograms. The heroin was imported in the form of some 1,132 compressed blocks of white powder. As of the date of trial, the amount involved in the particular importation was the largest such importation to have been detected by the relevant authorities. Facts

The remarks on sentence of his Honour Judge Shadbolt contain a clear and careful survey of the relevant facts. It is convenient to have regard to his Honour’s survey so as to set generally the scene for a consideration of the particular grounds of appeal that were maintained by each particular appellant.

The general background facts are stated by his Honour as follows: “On 13 October 1998, the Uniana, a small cargo boat, launched a speed-boat with a three-man crew just off the coast of northern New South Wales near Port Macquarie. The boat reached shore. The occupants were arrested and the shore-based support group was pursued and its members taken into custody at Nabiac. Thirty-one duffel bags containing many kilos of heroin powder were stowed in the speed-boat. In the early hours of 14 October the Uniana was pursued by two Customs boats and the HMAS BENDIGO. It was arrested, boarded and searched and the remaining crew were taken into custody. The amount of heroin powder when analysed was found to weigh 389 kilos and contained 252 kilos of pure heroin with an estimated street value of $620,000,000. It was the conclusion of a long and doubtless expensive investigation which ranged from Hong Kong to Australia and New Zealand. The Uniana was in fact a fishing trawler which has been specially converted for the heroin trade. Although its gunwales had been raised, the cargo hold so enlarged contained only the speed-boat. The ship’s only functional derrick was installed solely for the purpose of lifting the speed-boat and launching it. The remainder of the space was used to accommodate long range tanks to obviate the need for frequent re-fuelling. One of those intimately concerned in the importation of the heroin, a prisoner called Chan, gave evidence of the ship’s voyage from Hong Kong to the Andaman Sea where the heroin was, after a ten day wait, loaded at night many miles from the coast. Also brought on board was a Chinese national. The voyage then continued down the Kra Isthmus through the Straits of Malacca to Singapore where, by pre-arrangement, a bunkering lighter came out to meet it and the Uniana was re-fuelled. It then proceeded without again stopping, except to lower the speed-boat in order to test its engine, towards Australia, sailing south in the Java Sea, north through the Makassar Straits and then south-east along the northern coast of New Guinea until it reached Atoa where it turned south, sailing through the Coral Sea to Australia and its final destination at Port Macquarie. The heroin had been stowed in a secret compartment beneath the hold which housed the speed-boat. This compartment contained a specially constructed valve which could be used to flood it in case of sudden search and so deceive any Customs officers. The crew, largely Indonesian, had been recruited over a period for another small vessel, the On Shun, and on the day before they left Hong Kong the crew was transferred to the Uniana which had, a little time before, been renovated and registered in Belize. Much, if not all, of the foregoing was not in dispute. The issue central to the case was that of knowledge. The prisoners had, it was conceded, been involved or concerned in the importation of heroin. None however conceded that this concern was knowing concern. The case against each was, as a result, circumstantial.” The Appeal of Chen

Five grounds of appeal were notified. All but one of them were multi-faceted. We shall deal in turn with each of the grounds; but before doing so, will return to his Honour Judge Shadbolt’s factual summary, extracting from that summary his Honour’s canvass of the Crown case against the appellant Chen on the all-important issue of knowledge.

Judge Shadbolt summarises as follows the Crown case at trial against the appellant Chen on that issue: “a. He accompanied the heroin from the shore to the speed boat and on the speed boat to the Uniana. b. He unpacked the heroin from the sacks and re-arranged the blocks in sports bags. This task was done at night in the hold of the Uniana where the speed boat had been replaced in its cradle. c. It is a reasonable inference that he secreted the bags in the compartment below the deck of the hold. d. It would have been clear from the size and the nature of the small packages that they contained heroin. e. He accompanied the heroin to Australia when it left the Uniana. f. He was found in possession of a Glock semi-automatic pistol and false passport. g. His passport discloses a number of journeys through South-East Asia and because of the clothing he was wearing in the picture displayed in it, this document was obtained at some other time than this last journey, for that clothing was never found in his possession at Grant’s Beach.”

The appellant Chen gave evidence at his trial. He asserted that he was in truth an economic refugee. He said that his original intention had been to go as a refugee to Italy; but that the arrangements which had been made in that behalf were changed, Australia replacing Italy as his ultimate destination. He denied having any knowledge that the Uniana was to receive heroin. He asserted that his having accompanied the drugs was a mere coincidence. He denied any involvement in the re-packaging of the drugs. He gave as part of his version of events evidence of having journeyed through Vietnam and Burma, a part of his evidence of which Judge Shadbolt remarked that it was “riven by inconsistencies and relied heavily on strange coincidences” .

We turn to this appellant’s particular grounds of appeal. “Ground 1 The Trial Judge erred in holding that the powers exercised by the Commonwealth to detain the Uniana pursuant to ss 59 and 185 of the Customs Act 1901, were lawfully exercised. In consequence: (a) The Court had no jurisdiction to hear the evidence relating to the detention, search and arrest of the Uniana . (b) The evidence led by the Crown relating to the detention, search and arrest of the Uniana was inadmissible.”

It is necessary, for the purpose of dealing with this ground of appeal, to amplify as follows the relevant facts. [1] The trial of the four present appellants was the third in sequence of a series of related trials of various persons connected with the events earlier herein described. The first in that sequence of trials took place, broadly speaking, in February 2000; and the second trial in the sequence took place in, broadly speaking, March 2000. [2] In each of those antecedent trials, an attempt was made by counsel for the various accused in those trials to preclude the leading by the Crown of any evidence of the results achieved in the wake of the search and seizure of the Uniana . In the February trial, there was an application to exclude the particular evidence. In the March trial there was an application for a permanent stay of proceedings. The essential point argued was the same in each of the two cases. [3] The point essentially argued can be summarised as follows: (a) The Uniana was first called on to heave to at a time when it was within the 12 mile nautical limit of Australian territorial waters. (b) That requirement made of the master of the Uniana was a lawful requirement, and the master of the Uniana did not comply with it. (c) Thereafter the Uniana moved to a point somewhat outside the 12 mile nautical limit. (d) Thereupon the pursuing Customs and Naval authorities compelled, in effect, the Uniana to return within the 12 mile nautical limit. (e) The Uniana having thus returned, under improper coercion, within the nautical limit, the relevant search and seizure took place. [4] In the February trial his Honour Judge Shadbolt delivered on 15 February 2000 a judgment in which he overruled the objection to the admissibility of the relevant evidence. In the March trial, his Honour delivered on 14 March 2000 a judgment in which he rejected the application for a stay of proceedings. At the trial of the present appellants it was agreed that those rulings would be taken as having been given, also, for the purposes of that current trial. [5] In his Honour’s February judgment, Judge Shadbolt made the following relevant findings of fact: “It appears clear that the ship was ordered to stop whilst it was inside the twelve nautical mile limit. It did not do so. In its flight it went beyond that limit where it was induced to change course and return within the twelve-mile limit again. Only when it was within that limit did officers of the Customs go on board exercising a power which undoubtedly then existed under s 185 of the Customs Act. That the Uniana may not have returned voluntarily within the twelve-mile limit is not to [the] point. The power to board and search arose as a combination of a request under s 59(1)(b) and ss 185(1) and (2), providing the vessel was within territorial waters. Arrest of persons found required the former and also the belief based on reasonable grounds of criminal activity. No intention on the part of the master of the vessel to sail within the twelve nautical mile limit was required for the operation of these sections. Were it otherwise, no vessel blown within the territorial waters by storm could have ever been boarded by Customs. The only offence created by the sections is to fail to stop without reasonable cause when requested to do so.” [6] His Honour, in that same judgment, then noted briefly some authorities which had been drawn to his attention. It is not necessary to repeat the detail of what his Honour said in that regard. His Honour then expressed the view: “that the boarding of the vessel under s 185 and the subsequent search was lawful as was the arrest of all the crew. It follows that the exercise of powers under s 188, 189, 190 and 194 of the Customs Act as it then was, were also legal.” [7] His Honour then turned his attention to an alternative approach to the question of admissibility of evidence with which his Honour was then dealing. His Honour referred in that connection to section 138 of the Evidence Act 1995 (NSW). His Honour then made the following ruling: “The probative value of evidence obtained, both material and oral, was extraordinarily high. The arrest not only discloses where the speed boat, then on Grant’s Beach, came from, where the heroin was obtained and where it was stowed and who had management and control over it, but the falsified log sheet shows the consciousness of guilt in the accused who created it. It is therefore very important evidence. The proceedings are a trial for the importation of a massive amount of heroin. The impropriety, if that exists, of inducing the ship to return to Australian territorial waters was in all the circumstances understandable and was in all probability not deliberate. It did not in my view constitute a breach of Article 9 of the International Covenant on Civil and Political Rights, but [it] would however have been impossible to obtain that evidence without the impropriety alleged. I am of the view that the Crown has persuaded me that the evidence should be admitted, it being more desirable than undesirable to do so.” [8] In his Honour’s March judgment, Judge Shadbolt made the following findings of fact which, to some extent at least, supplement the findings expressed in his Honour’s earlier judgment of February: “How then can the behaviour of customs officers be categorised. Certain it is that the Uniana was within territorial limits when it was first challenged. Equally certain is it that the request to heave-to was given after all conditions precedent had been met. The Uniana declined to comply. The excuse given that all three radios were turned off cannot be believed. Intelligence of other ships, their positions and intention would have been at an absolute premium. Waiting just beyond the twelve nautical mile limit placed the Uniana at its most vulnerable. Waiting for the return of the speedboat rendered it an object of curiosity for any passing vessel. Waiting in daylight at that position made its situation even worse. … The next order given by the Commander [of the relevant Customs vessel] was probably given at the point of the Uniana’s departure from the twelve nautical mile limit. Thereafter, four such similar orders were given. On the worst complexion the actions of the customs officers were committed in an act of hot pursuit. The more favourable view is that they were simply unaware in those heavy seas where they were in relation to territorial limits.”

It is convenient to turn, next, to the way in which the submissions of the appellant in support of Ground 1 were framed. The written submissions put in support of Ground 1 read, relevantly: “The appellant contends that the presiding trial judge was only able to exercise jurisdiction to try matters relating to the search and detention of the Uniana because of the egregious and capricious act of the Crown in pursuing the vessel following its departure into international waters and forcing the vessel to return involuntarily to Australian territorial waters. The conduct of the Crown in this instance is reminiscent to an irregular extradition, such as where it is alleged that the presence of a person before the criminal court has been procured by force or other coercion. … In this case, the appellant contends that the Uniana was forced to return to Australian territorial waters in violation of and contrary to international law. No other nation was complicit in this violation, except for Australian law enforcement agencies. The Crown should not have led the evidence regarding the search and detention of the Uniana and his Honour should have refused to admit such evidence on the basis that it constituted an abuse of the process of the court. …”

At the hearing of the appeal learned senior counsel for the appellant referred us to the decision of the House of Lords in Regina v Horseferry Road Magistrates’ Court; Ex parte Bennett [1994] 1 A.C. 42. It is not necessary for present purposes to discuss in detail the facts of that case. It suffices to refer to the following extracts from the speech of Lord Griffiths at 61H-62H: “Your Lordships are now invited to extend the concept of abuse of process a stage further. In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law. … [I]n the field of criminal law … if it comes to the attention of the court that there has been a serious abuse of power it should, in my view, express its disapproval by refusing to act upon it. … The courts, of course, have no power to apply direct discipline to the police or the prosecuting authorities, but they can refuse to allow them to take advantage of abuse of power by regarding their behaviour as an abuse of process and thus preventing a prosecution. In my view your Lordships should now declare that where process of law is available to return an accused to this country through extradition procedures our courts will refuse to try him if he has been forcibly brought within our jurisdiction in disregard of those procedures by a process to which our own police, prosecuting or other executive authorities have been a knowing party. If extradition is not available very different considerations will arise on which I express no opinion.”

The first thing to be said about that analysis of legal principle is, in our opinion, that it gives no support whatsoever to the proposition that a Court before whom a person is improperly brought for trial has, by reason of that antecedent impropriety, no jurisdiction at all to deal with the matter thus brought before it. Such a Court, as the decision of the House of Lords now makes clear, will be entitled, for the better maintaining of the rule of law, to refuse to exercise its jurisdiction upon the basis that to do so would be to condone an abuse of the Court’s own process. This particular decision of the House of Lords, as we understand it, gives no support to the proposition advanced in paragraph (a) of Ground 1.

The decision of the House of Lords apart, we do not see any basis upon which it could properly be said that his Honour Judge Shadbolt did not have “jurisdiction to hear the evidence relating to the detention, search and arrest of the Uniana” . His Honour had jurisdiction to try criminal cases in New South Wales. The appellant was presented before his Honour in New South Wales and pursuant to the invoking by the Crown of precisely that jurisdiction. The fruits of the search and seizure of the Uniana were within the jurisdiction, and were amenable to proper control by the District Court of New South Wales. The importation which was the gravamen of the offence charged against the appellant was an importation plainly committed in part on the very coast of New South Wales, and in part within that part of Australian territorial waters lying off the coast of New South Wales. In those circumstances, we do not accept the proposition that there was any doubt about the jurisdiction of Judge Shadbolt.

We do accept that it would have been proper for his Honour to have refused to exercise that jurisdiction had proper cause in that behalf been shown to his Honour’s satisfaction. It is clear from both of the judgments given by his Honour in February and in March 2000 that his Honour did not accept that the materials put before him during, respectively, those two trials showed any good cause why his Honour should refuse to exercise his undoubted jurisdiction for the reason that to do so would involve an abuse of the process of his Honour’s Court.

The principles stated by Lord Griffiths are in any event remote from the present factual context. The facts considered by the House of Lords included a forcible removal of the defendant from South Africa to England in breach of the law of South Africa, in disregard of available extradition process and in breach of international law. The conduct of the authorities here was not in breach of the law of any other country and was not in disregard of any available extradition process. It involved bringing back into territorial waters a vessel which, assuming all other elements of the case against the appellant to be established, had brought a speedboat close to Australian territorial waters which in turn contravened Australian law in those territorial waters. It is a highly controversial and largely unargued question whether the authorities had acted in breach of international law.

It follows, in our opinion, that Ground 1(a) has plainly not been made good. That entails the need to consider the alternative that is advanced in Ground 1(b).

It is clear from what we have earlier quoted from the judgments delivered by Judge Shadbolt in the February and March trials that his Honour saw the relevant question of admissibility as hinging upon the operation of section 138 of the Evidence Act 1995 (NSW). It became, thereupon, incumbent upon his Honour to exercise a judicial discretion of the kind conferred upon him by section 138. That discretion had to be exercised upon the basis of the balancing exercise required by section 138 itself: that is to say, by the prudent and sensible striking of a balance between the desirability of admitting the questioned evidence, and the undesirability of admitting the evidence having regard to the way in which it had been obtained. A decision, properly reached, that the desirability of admitting the questioned evidence out-weighed, in the circumstances of the particular case, the undesirability of admitting the evidence because of the way in which it had been obtained, rendered the questioned evidence admissible.

It seems to us to be clear beyond question that Judge Shadbolt carried out, precisely and carefully, the balancing exercise that was required of his Honour by section 138. We see no error, either of law or of fact, in the approach taken by his Honour to that matter.

Both particular limbs of Ground 1 are predicated upon a foundational proposition that Judge Shadbolt erred in holding that the detention of the Uniana had been a lawful detention. Given the findings of fact, as we have earlier noted them, made by Judge Shadbolt, we are of the opinion that this foundational proposition is not correct. It seems to us to be clear that Judge Shadbolt found as a fact that the initial demand made of the Uniana that it heave-to was made at a time when the Uniana was within Australian territorial waters. It seems to us to be equally clear that the Uniana was within Australian territorial waters at the time it was actually boarded and searched, and at the times at which, subsequently, persons were arrested and items were seized. It seems to us to follow necessarily that the actual boarding, the actual search, the actual arrests, and the actual seizures were all lawful at the times at which, respectively, they took place. The highest point at which the appellant’s argument can be put is a contention that there was some unlawfulness or illegality or impropriety occurring between the original challenge within Australian waters and the ultimate seizure and search within those same waters. Even if it be granted that there was some such irregularity deriving from things occurring outside the strict nautical limit of Australian territorial waters, the result cannot be, in our opinion, to make unlawful the seizure and search within Australian waters of the particular vessel. All that follows from such an irregularity occurring outside the territorial limit is that the lawful seizure and search were accomplished only as a result of the antecedent irregularity. That cannot, our view, make the seizure and search itself unlawful; although, as we have earlier pointed out, we accept that on the given premise, a section 138 question as to the admissibility of the fruits of the search and seizure would arise. Further, even if the actual boarding, the actual search, the actual arrests and the actual seizures were unlawful, as the trial judge was prepared to assume contrary to his primary approach, he was right to conclude that the desirability of admitting the evidence outweighed the undesirability of admitting it for the reasons which he gave, namely the “extraordinarily high” probative value of the evidence, the importance of the evidence, the seriousness of the offences, the understandable and non-deliberate character of the contravention and the difficulty of obtaining the evidence without the contravention alleged. Neither Chen nor any other appellant endeavoured to demonstrate that the trial judge’s approach under s 138 miscarried. There was no criticism of it because there could be no rational criticism of it.

In addition to the foregoing matters, it is necessary to consider a notice given by the appellant Chen pursuant to section 78B of the Judiciary Act 1903 (Cth). The notice propounds two matters which are said to arise under the Commonwealth Constitution or to involve its interpretation. At the hearing of the appeals of the four present appellants we were informed that, and satisfied ourselves that, no one of the Attorneys-General of the Commonwealth and of the States desired to be heard in connection with the matters thus notified by the appellant Chen.

So far as concerns Ground 1, the section 78B notice propounds this question: “whether the Commonwealth, in exercising powers conferred under ss 59, 184 and 185 of the Customs Act 1901, acted ultra vires in forcing the MV Uniana to return to Australian territorial waters on 14 October 1999 [sic: but read instead 1998]” .

It suffices to say that in our opinion the proposition thus stated, which was not argued, involves a misconception of the Commonwealth Constitution , of the Customs Act 1901 (Cth), and of the Judiciary Act 1903 (Cth).

For the whole of the foregoing reasons, we are of the opinion that Ground 1 has not been established. Ground 2 “There was a miscarriage of justice by reason of the Crown calling Chan Chi Keung to give evidence on the following bases: (a) The Crown led inadmissible evidence relating to the credit of Chan Chi Keung contrary to the provisions of the Evidence Act 1995. (b) The evidence was in breach of section 71 of the Constitution in so far as the Crown, by exercising powers and/or functions conferred on the Commonwealth Executive pursuant to section 21E of the Crimes Act 1914 has usurped the judicial power of the Commonwealth. (c) The appellant was denied his right for his guilt to be determined exclusively by the jury contrary to section 80 of the Constitution. (d) In circumstances where it failed to properly and/or adequately assess the reliability of Chan Chi Keung in calling such witness in its case against the Appellant.”

The ground notified in paragraph (c) was abandoned at the hearing of the appeal. As to Paragraph (a)

The essence of the appellant’s contention is conveniently stated as follows in the appellant’s written submissions: “… [T]he appellant submits that the Crown Prosecutor should not have raised as an issue or led evidence as to Chan having provided a written undertaking to co-operate with law enforcement authorities or, having done so, tendering such an undertaking as an exhibit at the trial. The effect of leading such evidence from Chan (and the tender of the undertaking) could only reinforce that witness’s credit to the detriment of the case to be made on behalf of the appellant. In leading such evidence the Crown Prosecutor was not only a [sic: in] breach of the credibility rule as expressed in s 102 of the [ Evidence Act 1995 (NSW)], but … also [engaged in conduct constituting] a failure on the Crown prosecutor to discharge their [sic: her] functions in an impartial manner. … … The appellant contends that the issue of the jury being made aware of matters which, as a matter of propriety should be taken into account in determining whether the credit of a witness is diminished, extends only to the following subject matter: (a) the fact that the witness is complicit in the matters which are relevant to a fact in issue; and (b) that such witness has pleaded guilty and is to receive a discount on sentence by giving evidence at trial of other co-accused. The appellant contends that (a) and (b) above constitute the narrow approach to the disclosure of the witness’s cooperation with law enforcement authorities and does not constitute a breach of the credibility rule. However, the further disclosure that the witness has given and signed an undertaking to assist (with such undertaking subsequently being tendered as evidence) together with evidence … that the Crown can appeal against the inadequacy of his sentence if he failed to cooperate constitutes the broad approach to disclosure of the ‘true status’ of the witness and falls foul of the credibility rule. The fact that the witness will be complicit will, of course, be relevant to a fact in issue in the proceedings but a plea of guilty by a co-accused cannot constitute a joinder of issue which is relevant to such fact in issue. However, the fact that a complicit party may have received a discount on the sentence that would otherwise be imposed cannot be relevant to a fact in issue and can, if it is relevant at all, (which is not conceded), only relate to the credibility of that witness.”

Section 102 of the Evidence Act provides simply that “[e]vidence that is relevant only to a witness’s credibility is not admissible” . The first question now to be decided is, therefore, whether the evidence led by the Crown of the witness Chan’s having undertaken in writing to cooperate with law enforcement authorities breached the rule established by section 102. In that connection we observe: [1] The appellant’s present contention that there was such breach, seems to us to be weakened by the concession, which we understand to be carried by the written submissions previously quoted, that it did not breach the section 102 rule to lead in chief from Chan the fact that he was himself complicit in the relevant importation; and that he had pleaded guilty to the offence constituted by his complicity, receiving in that behalf a sentence discounted in consideration of his agreeing to give evidence at the trial of, relevantly, the present appellant and his co-appellants. If it does not breach the section 102 rule to disclose at least so much of the true status of such a witness as Chan, then we do not see the logic in holding that the frank and truthful disclosure of the additional circumstance that he, Chan, was prepared to protect his own interests as he saw them by giving a written undertaking, should constitute such a breach of section 102. [2] There is authority of long standing in this Court for the proposition that the true status of such a witness as the witness Chan in the present case is relevant in a sense that extends beyond credibility alone: Reg v Booth (1982) 8 A Crim R 81; followed in Reg v Gonzalez-Betes [2001] NSWCCA 226. [3] In Booth each member of the Court, (Street CJ, O’Brien CJ of Cr D and Lee J) gave concurring but separate judgments. It will suffice for present purposes to quote the following passages from the judgment of Lee J: “The direction which practice requires a judge to give when an accomplice gives evidence for the Crown is intended to achieve a particular purpose: namely to bring to the attention of the jury that the evidence of such a witness may be in a different position from the point of view of reliability from that of other witnesses. The trial judge is expected to bring home to the jury that it is dangerous to convict on the uncorroborated evidence of such a witness; and this direction has the consequence that the witness is, in a real sense, held up as a witness whose testimony is suspect. It is left to the jury to appraise the evidence of the witness in the light of the warning given. In my opinion the requirement that the judge give the direction and that the jury then assesses the witness’ evidence in the light of that warning provides the justification for the admissibility into evidence of evidence showing the position of the accomplice vis-à-vis the Crown which is the party calling him. In order for the jury to assess the degree of danger involved in evaluating his uncorroborated testimony, it is necessary for the Crown to disclose whether the witness has for instance been offered or granted a pardon, or whether it is not intended to proceed against him, or whether in fact he has been charged with an offence arising out of or related to the matter with which the accused is charged. Such evidence, in my opinion, goes to the witness’ status as an accomplice, and that is a relevant matter for the jury to consider. It is particularly relevant in regard to the extent to which the evidence of that accomplice can be called upon to found a conviction of the accused.” [8 A Crim R, 86,87] [4] We agree, with respect, with that analysis of Lee J. We are not persuaded that those responsible for the drafting of section 102 of the Evidence Act intended simply to abrogate the principles thus explained. The evidence is not tendered as evidence relevant only to a witness’s credibility because it is tendered pursuant to the Crown’s duty of fairness to the accused to lay out before the jury the status of the witness without that status being dragged out in cross-examination in a manner which might not be favourable to the interests of the accused. Section 9(1) provides that the Act does not affect the operation of a principle or rule of common law in relation to evidence except in so far as the Act provides otherwise expressly or by necessary implication. Section 102 does not provide otherwise. There are other forms of evidence in chief which might, on one approach, be said to relate to credibility, while not being excluded by s 102. It is customary to obtain the address and occupation of witnesses at the start of the examination in chief. Strictly speaking the address and occupation of a particular witness at the time of the trial is irrelevant to any issue, though either an address or an occupation at the time of the events in issue can be. The evidence is received simply in order to locate the witness in society. Similarly, the qualifications of an expert do not go to an issue, and, if there is no objection to the witness’s expertise, can only be relevant to the reliability of the opinions or other evidence to which the witness testifies. Yet s 102 cannot be construed to render that kind of evidence inadmissible when for centuries it has been admissible. We reject, therefore, the proposition basal to paragraph (a), as did this Court in R v Gonzales-Betes [2001] NSWCCA 226. [5] Even had we been persuaded to the contrary view, we would have held that there had been, in substance, no miscarriage of justice. First , it seems to us that counsel at trial for the appellant could not have been denied the opportunity of cross-examining Chan about the matters of which we have earlier spoken: see section 103 of the Evidence Act . Secondly , had the Crown not led the particular evidence from Chan, and had that evidence thereafter been elicited in cross-examination, the practical position at trial would have been, in our opinion, substantially the same as the practical position achieved in fact. Thirdly , had the relevant material about the witness Chan been led neither in-chief nor in cross-examination, then the jury would have been called upon to consider Chan’s reliability upon an incomplete and misleading basis. It is sometimes not possible to avoid such a result, because of some countervailing, or other, legal requirement. But such a misleading presentation of a witness such as Chan is, obviously we would have thought, to be avoided if that can possibly be done. In the present matter it could be done; and was, in our opinion, properly and correctly done. Fourthly , counsel appearing for Chen at the trial did not object to the tender of the written undertaking. The transcript for 18 October 2000 records that it was admitted without objection. This attracts the operation of rule 4 of the Criminal Appeal Rules, requiring leave for the moment to be taken. There is no reason whatever why leave should be given. In the submissions appearing under this ground was a submission that the trial judge did not direct the jury that a plea of guilty by Chan was not evidence against the appellant, and that this failure was a material non-direction. No argument was developed in relation to this point, and it is rejected. As to Paragraph (b)

The essential contention of the appellant is that s 21E of the Crimes Act 1914 (Cth) is unconstitutional as being in breach of s 71 of the Commonwealth Constitution . The written submissions of the appellant propound the following particular propositions in support of that broad ground of appeal: “(a) It is predicated upon the exercise of a power that is not exclusively administrative in character, being the exercise of a power that is incidental to the Judicial power of the Commonwealth. (b) Vesting of the power in the Director of Public Prosecutions is inconsistent with the separation of the Judicial power of the Commonwealth affected by Ch III of the Constitution. (c) The exercise of the power has the effect of compromising the integrity of the judicial system brought into existence by Ch III of the Constitution. (d) The forming of an ‘opinion’ by the Director, which has the effect following the institution of an appeal of increasing a person’s sentence, is inconsistent with the exercise of the judicial function which is constituted by the judicial act of imposing a penalty consequent upon conviction.”

Section 21E of the Crimes Act 1914 (Cth) is, relevantly, in the following terms: “(1) Where a federal sentence, or a federal non-parole period, is reduced by the court imposing the sentence or fixing the non-parole period because the offender has undertaken to co-operate with law enforcement agencies in proceedings, including confiscation proceedings, relating to any offence, the court must: (a) If the sentence imposed is reduced – specify that the sentence is being reduced for that reason and state the sentence that would have been imposed but for that reduction; and (b) If the non-parole period is reduced – specify that the non-parole period is being reduced for that reason and state what the period would have been but for that reduction. (2) Where: (a) A federal sentence is imposed or a federal non-parole period is fixed; and (b) The sentence or non-parole period is reduced because the offender has undertaken to co-operate with law enforcement agencies as described in subsection (1); and (c) After sentence, the offender, without reasonable excuse, does not co-operate in accordance with the undertaking; The Director of Public Prosecutions may, at any time while the offender is under sentence, if the Director of Public Prosecutions is of the opinion that it is in the interests of the administration of justice to do so, appeal against the inadequacy of the sentence or the non-parole period. (3) Where an appeal is begun under this section against the inadequacy of a sentence, or of a non-parole period, that was reduced because of a person’s undertaking to co-operate with law enforcement agencies, the court hearing the appeal: (a) If it is satisfied that the person has failed entirely to co-operate in accordance with the undertaking – must substitute for the reduced sentence or reduced non-parole period the sentence, or non-parole period, that would have been imposed on, or fixed in respect of, the person but for that reduction; and (b) If it is satisfied that the person has failed in part to co-operate in accordance with the undertaking – may substitute for the reduced sentence or reduced non-parole period such a sentence, or such a non-parole period, not exceeding in length the sentence that could be imposed, or the non-parole period that could be fixed, under paragraph (a), as it thinks appropriate.”

Section 71 of the Commonwealth Constitution provides for the exclusive vesting of the Judicial power of the Commonwealth in the High Court of Australia “and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.”

In Reg v “YZ” [1999] NSW CCA 48 , this Court (Beazley JA, Sully and Dunford JJ), considered the proper construction of s 21E. We agree with the following propositions, which we take from paragraphs 29 and 44 of the joint judgment of Sully and Dunford JJ: “It seems to us that the purpose or object underlying s 21E is, notwithstanding the manifest deficiencies in the drafting of the section, clear. The purpose or object is that an offender who fails to co-operate in accordance with a relevant promise in that regard, is not to have his sentence of imprisonment increased unless, in fact, the failure to co-operate is ‘without reasonable excuse’. We consider that the legislative object or purpose, as thus conceptualised, is better served by a construction of s 21E that would leave in this Court a jurisdiction, a power and a duty, independent of any power or duty attaching under s 21E to the Director of Public Prosecutions, to decide whether, as a matter of fact, there has been a relevant failure to co-operate ‘without reasonable excuse’. We are therefore satisfied that on the proper construction of s 21E, although the Director, to justify the institution of the appeal, must form an opinion that the non-co-operation has been without reasonable excuse, it is for the court hearing the appeal, as a pre-condition of the exercise of its powers under subs (3), to make its own determination whether the offender has reasonable excuse for not co-operating in accordance with an undertaking given by him or her. …”

The joint judgment in “YZ” noted specifically that no argument had been addressed upon the question whether the determination of the question of lack of reasonable excuse under s 21E, which can have the effect of increasing the term of imprisonment to be served, constituted the exercise of the judicial power of the Commonwealth. The appellant seizes upon this portion of the joint judgment as leaving open the correctness in law of the proposition, for which the appellant now contends, that when the Director of Public Prosecutions decides, pursuant to s 21E(2): first that there has been a failure “without reasonable excuse” to co-operate in accordance with a particular undertaking; and secondly , that it is, therefore, “in the interests of the administration of justice … (to) … appeal against the inadequacy of the sentence or of the non-parole period”; then the Director, in respect of each of those two considerations, is exercising the judicial power of the Commonwealth, something which the Director cannot be empowered lawfully to do because of the imperative requirements of s 71 of the Commonwealth Constitution .

The appellant bolsters that submission by referring to the following propositions, which are taken from the joint judgment of Brennan, Deane and Dawson JJ in Chu Kheng Lim & Ors v The Minister for Immigration, Local Government and Ethnic Affairs and Anor (1992) 176 CLR 1 at 27: “There are some functions which, by reason of their nature, or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to and ‘could not be excluded from’ the judicial power of the Commonwealth. … In exclusively entrusting to the courts designated by Ch. III the function of the adjudgment and punishment of criminal guilt under a law of the Commonwealth, the Constitution’s concern is with substance and not mere form.”

We do not accept the submissions of the appellant. In our opinion, s 21E does not entail, upon its proper construction, any attempt to vest in the Director of Public Prosecutions any power the proper understanding of which is that the power is a judicial power. Nothing that the Director of Public Prosecutions is empowered by s 21E to do results, and can result, in any automatic, self-executing increase in the particular offender’s sentence. The most that the Director of Public Prosecutions can achieve is to bring the particular offender back before a Court of competent jurisdiction, appealing to that Court for an order of that Court, that order having the effect of increasing, in accordance with the provisions of s 21E, the discounted sentence imposed at first instance upon the particular offender. It is the power of the court to form and act on particular opinions reflected in its findings which is judicial power, not the power of the Director to initiate the proceedings before the court.

The notices given by the appellant pursuant to s 78B of the Judiciary Act raise for consideration the following question: “Whether there has been a breach of s 71 of the Constitution in so far as the Crown, by exercising powers and/or functions conferred on the Commonwealth Executive pursuant to s 21E of the Crimes Act 1914, has usurped the judicial power of the Commonwealth.”

We consider, for the reasons previously given, that this question has been framed upon the basis of a misconception of the nature of the power conferred upon the Director of Public Prosecutions by s 21E. Be that as it may, the appellant’s trial did not raise any question concerning the exercise by the Director of Public Prosecutions of his power pursuant to s 21E. The witness Chan was sentenced to a term of imprisonment before he was called as a witness for the Crown at the trial of the appellant. Chan was given the benefit of a discounted sentence in return for his undertaking to give evidence for the Crown at the trial of the appellant. It is not contended, and in our opinion it could not be contended correctly, that the sentencing Judge who dealt with Chan was not lawfully empowered so to discount the sentence that would otherwise have been thought appropriate to be passed upon Chan. That is how matters stood at the moment when Chan was called to give evidence; and that is how matters stood at the moment when Chan’s evidence at trial concluded. As to Paragraph (d)

The written submissions of the appellant say that the appellant: “Relies on the circumstances of this case as detailed in these submissions, coupled with the submissions made under Ground 2(a) in support of this particular ground.”

We have already dealt with Ground 2(a). We will deal, otherwise, with Ground 2(d) when dealing with Ground 3. Ground 3 “The trial of the appellant was rendered unfair in that the Crown Prosecutor failed to act fairly in the discharge and performance of her functions: (a) By calling Chan Chi Keung to give evidence in the Crown case; (b) By failing to concede that a direction regarding the good character of the appellant was available given the circumstances of the case.” As to Paragraph (a)

In our opinion, this part of Ground 3 is without substance for the reasons appearing in the following exchange which took place at the hearing of the present appeal: “SULLY J: Is this correct, the Crown put Chan before the jury; it did not suppress from the defence, the accused, any of the material that it had in connection with Chan; is that a correct understanding; all his statements were disclosed? [COUNSEL]:Yes. SULLY J: There is no question that anybody was taken by surprise? [COUNSEL]: No. SULLY J: Everybody knew who he was, what he was, what he had said, when he had said it? [COUNSEL]: Yes. SULLY J: Nobody impeded the proper cross-examination of Chan as a witness called in the Crown case, is that right? [COUNSEL]: No. SULLY J: So it became important to ensure that the trial Judge gave the jury the appropriate warnings and directions proper to such a case? [COUNSEL]: Yes. SULLY J: Leaving aside for the moment the complaint, if there is any, that the trial Judge did not give the proper directions appropriate to that difficult situation, what is the complaint about the Crown? [COUNSEL]: The complaint is, it was the way the evidence was led and the reasons that I hope I have outlined.”

It appeared, thus, that no complaint was made of any alleged impropriety on the part of the Crown Prosecutor at trial. The appellant’s submissions, as they subsequently unfolded, moved away from any suggestion of impropriety on the part of the Crown Prosecutor, to a more generalised complaint which was put by learned senior counsel for the appellant in the following way: “It was rather the way the approach or imprimatur of the Crown on his evidence had a substantial impact on the way the Judge gave rulings on the s. 38(1)(c) point because once the Crown’s view or presentation of his evidence became entrenched in the course of the trial, that view was picked up in the course of rulings by the Judge which allowed the Crown to cross-examine Chan, to visit upon Chan the Crown’s imprimatur which we say could have conveyed to the jury that this is the reason he has been called, this is the view the Crown has of his evidence, we have heard the Judge’s ruling on certain aspects, the Crown has been able to cross-examine him, the Crown is controlling this evidence, and it gave the Crown an unfair advantage. Even the example where the Crown was allowed to cross-examine its own witness gave the Crown a tactical advantage.”

We are unclear of what precisely is the complaint that this passage of submissions is intended to convey. Chan was, on any view, a problem witness. He had himself been implicated significantly in the illicit activities that were the subject of the trial. The fact that he had, so to speak, turned his coat, entailed, without more, that he was a potentially unreliable witness. In so far as the Crown pointed those matters out to the jury, we do not see that the appellant has any just cause for present complaint. Chan made a number of statements, some induced, and others not. Provided only that all of this material was available to the appellant at his trial, - and the contrary was not suggested at the hearing of the appeal, - then we do not see how the appellant was unfairly prejudiced by the calling of Chan as a witness in the Crown case. Chan was an indemnified witness, a fact which was disclosed fully and frankly to the jury at trial. It appears to be the case that certain statements made by Chan in connection with the grant of his indemnity were not tendered in evidence, although the indemnity itself was so tendered. Quite why the statements supporting the indemnity were not tendered was not explained at the hearing of the appeal. There does not appear to be any reason why counsel appearing for the appellant at trial could not have called for the statements and have ensured that they did go into evidence. All that we can say, as at present advised, is that counsel at trial did not, for whatever reason, take that course.

To suggest that there was some unfairness or impropriety in the Crown’s calling Chan at all at the trial of the appellant, is, in our opinion, a proposition which cannot be sustained. Chan was obviously, on the given facts, a witness of the greatest potential significance to the Crown case. It cannot be correct to say, simply and peremptorily, that Chan ought not to have been called as a witness at all. No objection was made at the trial to the calling of Chan as a witness.

We accept, as of course, that the Crown, having decided to call Chan as a witness in its case, was thereupon obliged to disclose in accordance with proper principle and practice the entirety of any statements made by Chan to the police, the prosecuting, or any other relevant authorities. As is clear from the passages earlier quoted, it is not contended by the appellant that this was not done.

As to the application by the Crown to cross-examine its own witness, it cannot be correct to suppose that there was anything improper or untoward in the making by the Crown of that application. Whether the application, once made, was or was not properly to be granted, was not a question for the Crown; but was, rather, a question for the exercise of a judicial discretion on the part of the trial judge. That the trial judge decided, in the exercise of that discretion, to permit the Crown to cross-examine its witness, might be indicative of error on the part of the trial judge (though no ground of appeal was propounded or contention advanced to suggest that there was any relevant error); but it cannot possibly be indicative of anything untoward on the part of the Crown in the Crown’s having sought such a ruling from the trial judge.

As to the proposition that there was something untoward in the Crown’s having invited the jury, in effect, to pick and choose among the various pieces of evidence given by Chan, we do not see anything amiss in the Crown’s having taken that approach before the jury.

In Bunning v Cross (1978) 141 CLR 54, Stephen and Aickin JJ speak, albeit in a context different from the particular context of the present appeal, of considerations respecting the obtaining of evidence in what their Honours describe as: “… an age of sophisticated crime and crime detection when law enforcement increasingly depends upon electronic surveillance and eavesdropping, the unannounced search of premises or of the person and upon scientific methods, whether of identification, by finger prints or voice prints, or of ascertainment of bodily states, as by blood alcohol tests and the like.”

Their Honours observe that in such a context there is: “… no initial presumption that the State by its law enforcement agencies, will in the use of such measures of crime detection observe some given code of good sportsmanship or of chivalry.”

Those latter observations are, in our opinion, equally applicable to the use, in the detection and in the proper prosecution of crime of the kind here in point, of such a witness as Chan. It would be, no doubt, preferable in an ideal world that recourse never be had to the evidence of so problematic a witness as the witness Chan in the present case. But it is not an ideal world. Large scale drug importation is a significant scourge in contemporary Australian society. Such illicit activities frequently involve, and plainly did involve in the present particular case, planning and execution of great sophistication. It will frequently be the case, whether palatable or not as a matter of abstract principle, that the opportunistic treachery of such a witness as the witness Chan in the present case will be a significant factor in the proper detection of, and in the proper prosecution of, serious drug-related crime. In any such particular case, it is, in our opinion, not only the entitlement, but the duty, of the prosecuting authorities to make every proper use of such evidence. The guiding principles are well established, and they are straight forward. They require of the Crown a full and a frank disclosure of the existence of the witness; and of all statements made by the witness, whether favourable or not to the case that the Crown proposes to pursue at trial; and the full and frank disclosure by the Crown of any other factor known to the Crown and capable of influencing the assessment by the jury of the credit of the particular witness, whether or not that assessment can be expected, reasonably, to favour the Crown case.

In our opinion, Ground 3(a) has not been made good. As to Paragraph (b)

The relevant facts are as follows: [1] When the appellant was arrested on 14 October 1998 he was found to be in possession of a Chinese passport in the name of Xu Chang Wen. The passport photograph was that of the appellant. The appellant, when asked by the arresting police to give them his name, gave them the name Chen Wei-Ming. He was subsequently charged, and later still brought to trial, under that name. [2] The Crown called at trial an Australian Federal Police agent named Kevin Zuccato. He was cross-examined as follows by counsel then appearing for the present appellant: “Q. I just want to ask you about the passport in the name of Zu and other names. Do you know the one I’m referring to it is Exhibit S in this trial? A. Zu or Xu, sir. Q. Xu, I think it is. We have heard evidence, and it is undoubtedly the case, that that appears to be a photograph of the accused, Mr Chen on the passport, is that right? A. That’s right. Q. Just to go over very briefly a couple of things that were put to you by the Crown. Your document examiner is clear that that is a substituted photograph, is that right? A. Yes, that’s right. Q. It is not put over the top of another photograph, for instance, the original appears to be missing completely? A. Yes. Q. This passport having been in the possession of the investigating police for sometime led you to make some inquiries did it not, of the People’s Republic of China as to the origins of this passport? A. That’s right. Q. Is it your understanding that this is an authentic Chinese passport that was issued [in] this name of Xu Chang Wen? A. Yes it is. Q. But you can see there within the document the identity card number which appears in another panel? A. Yes. Q. Your inquiries in China haven’t enabled you to be able to confirm whether that identity number corresponds with the name that appears on the passport, is that right? A. That’s right, the Chinese authorities haven’t responded to our requests. Q. It is not a matter of your trying to trace the history of this passport, you’ve tried but you haven’t been able to be provided with any information from the officials in China, is that correct? A. That’s correct, Sir. Q. So far as the accused name by which he stands indicted in this trial, Mr Chen Wei Ming, that is a name that he provided to arresting police at some stage shortly after he was taken into custody on the beach, is that right? A. That’s correct. Q. Is it the case sir that inquiries as to that name, the origin of the person with that name identifying numbers, things of that kind, sorry things of that type, have similarly been unsuccessful so far as the police investigation was concerned? A. That’s correct. Q. Because of the lack of response from China, is that the situation? A. Yes sir.” [AB 648-649] [3] The foregoing cross-examination of Zuccato took place on Friday 3 November 2000. At the end of that day’s hearing, counsel then appearing for the appellant raised briefly with the trial judge the question whether there would be a concession by the Crown that the appellant had no criminal antecedents in Australia or overseas. It seemed to be clear at that stage of the joint trial that the Crown was disposed to concede, as to each of the appellant’s three co-accused, that he was in that sense a person of good character. Counsel then appearing for the present appellant was, obviously, concerned to avoid a situation where a good character direction was given in connection with the appellant’s three co-accused, but not in connection with the appellant. The relevant exchanges appear to have been brief and inconclusive. During their course, counsel then appearing for the present appellant said this to the trial judge: “Well, I’ve got instructions on what I’m entitled to raise, but I’ve always formed the view that one doesn’t do it until one gets confirmation from the Crown.” [4] On the following Monday, counsel then appearing for the present appellant returned to the question whether the Crown would concede as to the present appellant that nothing adverse to him was known to the relevant authorities. Counsel suggested that, instead of there being a formal concession by the Crown prior to the close of its case, that the three co-accused were, in the relevant sense, persons of good character, that matter should be postponed until, as it was hoped, some finality one way or the other could be reached in respect of the appellant himself. Counsel then appearing for the three co-accused raised no objection to that suggestion. There was a brief interchange as follows between the learned presiding Judge and counsel then appearing for the appellant Siregar: “[COUNSEL] … I have no objection your Honour just as long as its on the understanding that in effect between us the concession has been made. HIS HONOUR: Yes, in fact it doesn’t require, as I understand it, a concession by the Crown. [COUNSEL]: No, it doesn’t. HIS HONOUR: If your client asserts that he is a person of good character, the Crown is left with nothing to contradict – [COUNSEL]: On that basis I have no objection. HIS HONOUR: But … [counsel then appearing for the present appellant] … is quite right, usually it is done by way of concession to cut things short.” [5] On 6 November the present appellant gave evidence in chief. He was asked, in the circumstances to which we have hitherto referred, no questions concerning character. The appellant was cross-examined in part on 6 November and in part on 7 November. The cross-examination, too, did not raise the question of character. [6] On 7 November learned senior counsel for the Crown orally advised counsel then appearing for the appellant that the Crown instructions were that the holder of the identification card, the number of which had been provided to the Crown, had been identified as belonging to a named Chinese male who was not the present appellant. [7] During the course of the present appellant’s cross-examination on 7 November, there occurred an exchange between the learned trial judge, the Crown Prosecutor and counsel then appearing for the appellant. That exchange drew from counsel then appearing for the appellant the following statement: “The question of whether character is going to be raised on behalf of Mr Chen hasn’t been fully ventilated yet because we were ever hopeful that the information we provided would bear fruit. If at the end of the cross-examination Agent Zuccato or someone hasn’t come through that door and confirmed in a way that I’d hope they’d confirm my instructions, I intend to seek your Honour’s leave to ask him one further evidence [sic] in chief, namely, do you have any criminal convictions and which I anticipate the answer would be in accordance with my instructions, but I have delayed doing that because we were ever hopeful the Federal Police could provide us with the material one normally seeks to protect our position.” [8] So matters continued until 13 November, the day upon which addresses commenced. Prior to the commencement of addresses, counsel then appearing for the appellant raised with the learned presiding Judge, and as follows, the continuing problem concerning the Crown’s position respecting the appellant’s character: “[COUNSEL]: … Can I just indicate that notwithstanding having spent the whole of the lunch hour in attempt to resolve this problem that we still have so far as the identification and the consequences are with my client, it hasn’t been able to be resolved to our mutual satisfaction. I am going to ask the Crown’s further indulgence not to close the door on direction at this stage, that if this could somehow [be] done at a later stage in the trial and it anyway becomes highlighted because its done in a different fashion, so be it, but at this stage all avenues have not been exhausted, especially as I’m instructed that certain steps have been taken in relation to his fingerprints, something which one would hope would remain constant so that they may resolve the matter. HIS HONOUR: Well I think that it can be done at any time before I charge the jury and although I am not intending to bind the Crown I am sure that they would agree that that could be done. If its available it will be done. [COUNSEL]: I just don’t want to prejudice my friend’s position because they are in a position to avail themselves of that privilege during the course of their addresses. If I had to appear to be somewhat one out at some later stage in the trial, well that’s the price I pay for it.” [9] On 13, 14 and 15 November, the various addresses of counsel were made. Prior to the commencement of the address to the jury of counsel then appearing for the present appellant, the learned presiding Judge raised the still outstanding question of character. The learned Crown Prosecutor gave a careful and precise summary of the further steps that had been taken in an attempt to resolve the inconclusive situation then current. It was clear from what the Crown Prosecutor told the Court that the best endeavours of the Crown had not been successful in obtaining the information necessary to enable the Crown to make an unqualified concession that nothing adverse to the appellant was known either in Australia or in China. Notwithstanding the then advanced stage which the trial had reached, the learned presiding Judge continued to leave open to the present appellant an opportunity of raising good character should it happen that the ongoing Crown inquiries yielded information such as to satisfy the Crown that there was no basis for contradicting a submission that the present appellant was, in the relevant sense, a person of good character. His Honour said: “If it were miraculously to happen in the next day or so [that] the negative information was received by the Crown, then I would most certainly include it in my charge to the jury. In the absence of that and in the absence of him clearly raising character, then I will not stop.” His Honour asked counsel then appearing for the present appellant whether what his Honour had said was clear; and counsel responded affirmatively. [10] The Crown did not obtain thereafter, and prior to the conclusion of the summing-up, the information for which it had been searching, and was continuing to search. In those circumstances, the Crown would not make any formal concession to the effect that the present appellant was a person of good character. The summing-up in connection with the appellant’s case, did not contain, therefore, any direction as to character.

Against the foregoing factual background, we are of the opinion that the following simple propositions are sufficient to dispose of the ground of appeal which we are now considering: [1] The Crown was under no obligation to concede that the appellant was a person of good character without having first satisfied itself by reasonable inquiry that such was in fact the case. In view of the doubts about the appellant’s identity, there were considerable difficulties in making inquiries. [2] The Crown was under an obligation to make a full and frank disclosure to the then representatives of the appellant, of any material in, or coming into, the possession of the Crown and bearing, whether favourably or unfavourably to the appellant, on the question whether the appellant was entitled in fact to be dealt with upon the basis that he was, in the relevant legal sense, a person of good character. It has never been the appellant’s case, whether at trial or on appeal, that the Crown was in breach of this particular obligation of fairness. [3] The decision either to raise, or not to raise, good character was, ultimately, a decision for the appellant himself and for those then representing him at trial. When it became plain to counsel then appearing for the appellant that the desired concession by the Crown would not be forthcoming, there was nothing, so far as we can see, that prevented counsel from then doing what he had plainly foreshadowed he would do: that is to say, to seek leave to re-examine his client so as to ask, simply, the question: “Do you have any criminal convictions in any country?”. [4] It seems to us to be a reasonable inference from the given facts that counsel then appearing for the appellant made a tactical decision that, if he could not have the assurance of the so-called concession that he had been seeking from the Crown, then he would not take what he saw as an unacceptable risk by asserting affirmatively the appellant’s good character. It is not for us to criticise counsel for having taken such a tactical decision; and we do not so criticise him. We make, rather, what seems to us to be the obvious point: namely, that counsel did in fact make such a decision and the appellant is fixed with the decision’s practical consequences.

In our opinion, Ground 3(b) has not been established. Nor has Ground 2(d). Ground 4 “There was a miscarriage of justice in that the Trial Judge erred in his directions to the jury as follows:- (a) By failing to give a proper and/or adequate direction regarding how the jury should approach the evidence given by Chan Chi Keung; (b) By failing to give a direction in respect of the good character of the Appellant. (c) By failing to give a proper and/or adequate direction to the jury about the application of the burden and standard of proof as it applied to the case of the Appellant. (d) By failing to give a proper and/or adequate direction to the jury regarding the use to be made of the banking evidence led by the Crown in its case against the co-accused Lau. (e) By failing to give a direction that, even if the jury preferred the evidence of the prosecution, they should not convict unless they were satisfied beyond reasonable doubt of the truth of that evidence. (f) By directing the jury that, in so far as Chan Chi Keung was cross-examined about prior inconsistent statements, such cross-examination related only to the credit of that witness.” At the outset it may be noted that counsel appearing for the appellant at the trial (who was not counsel appearing on the appeal) did not ask for directions correcting any of the errors which it is now said the trial judge made. Rule 4 applies. As to Paragraph (a)

At a very early point in the summing-up, the learned trial judge gave the jury the following directions: “Experience has shown that it is dangerous to convict on the evidence of an accomplice alone. Accomplices to a crime have much to gain and little to lose in giving evidence for the Crown. Fear of consequences, remorse, revenge, blame shifting and spite might provide motive enough for an accomplice to give evidence against a fellow criminal. He may have committed himself to a version of events which he cannot now change. Further encouragement might come from an offer of a shorter sentence or the ignoring of other crimes. The problem which jurors have with such evidence of people who are criminally concerned is that you never know where the true motivation might be and it may never be revealed to you. What then is a person who is criminally concerned, or an accomplice? He is in fact an accessory before the fact or a principal or an accessory after the fact. That is, he is a person who helps in the preparation of the crime or commits a crime or assists a criminal to escape liability. There seems to be absolutely no doubt that Mr Chan falls firmly into that category. It is of course a matter for you [to] determine but once you form that view, it is dangerous to convict on that evidence alone. Corroboration or evidence from outside Chan’s evidence should be considered to see if support can be obtained for the account which he has given.”

His Honour then drew to the attention of the jury a number of pieces of evidence which, if accepted in fact by the jury, would corroborate, to some extent, the evidence of Chan.

His Honour then gave the jury a lengthy explanation, which his Honour described as: “not specifically a direction of law [but] just … suggestion to you as to how you deal with the difficult question of Chan’s evidence.”

His Honour drew attention to the various statements that had been made by Chan to the investigating authorities. His Honour explained that the jury could take account, in making its assessment of Chan’s reliability, of his demeanour; of any lies which the jury was satisfied Chan had told; and of any inconsistencies found as a fact by the jury among the various statements made by Chan. His Honour then concluded this portion of his summing-up in this way: “What you would be doing in that case is to say as you inspect his evidence, I would accept that of him because it is confirmed by other pieces of evidence. I would not accept that because it either offends my sense of how things actually work in the real world or in the alternative, because there is no corroboration for that particular piece of evidence. When you do that, you can separate out as it were, those matters of Chan’s evidence that you would accept and to those which you would reject. I just wanted you to move away from any thought that you would just choose one account or the other or neither on some impressionistic feel. I think you can analyse what he has said to you and accept parts and reject other parts or of course you can, if you wish, reject the whole lot of it.”

In our opinion, Chan was plainly an accomplice. Though s 164(3) of the Evidence Act 1995 abolished the universal common law duty to give an accomplice warning, the power and the duty to do so in appropriate circumstances survives: see also s 165(5). It became, therefore, incumbent upon the learned presiding Judge to give the jury a clear direction to the effect that it would be dangerous to convict the appellant, and his other co-accused, upon the uncorroborated evidence of that accomplice. This, as it seems to us, his Honour plainly and correctly did. It became, then, further incumbent upon his Honour to give the jury some assistance in understanding the nature of corroborative evidence; and in identifying those matters of fact which, if accepted by the jury as having been proved, could constitute such corroboration in the appellant’s particular case. This, also, we think his Honour plainly and correctly did.

It would have accorded with normal practice for his Honour to have instructed the jury that, although it was dangerous to convict upon the uncorroborated evidence of Chan, the jury might nonetheless do so if, having scrutinised his evidence with particular care, and in the light of the warning as to the said danger of conviction, the jury was prepared to accept the evidence and to act upon it. In the present case, those additional matters were not put to the jury; but it cannot reasonably be supposed, in our opinion, that such omission entailed disadvantage to the appellant such as to result in a miscarriage of justice.

The submissions put for the appellant criticise the passages which we have extracted from the summing-up, upon the basis that they failed to put, either adequately or at all, “Any ‘countervailing arguments’ as to why a witness may feel compelled to adhere to a falsehood and feel a need to continue with it.”

In our opinion, a fair reading of the entirety of the passages which we have earlier quoted from the summing-up does not support this proposition. We are strengthened in that view by the fact that the appellant was represented at trial by counsel well experienced in the conduct of criminal cases, and no application was made for a re-direction according with the submission now put for the appellant. As to Paragraph (b)

We need add nothing further to what we have earlier herein written upon this topic. As to Paragraphs (c) and (e)

These two aspects of Ground 4 are linked in the written submissions of the appellant, and it is, therefore, convenient to consider them together.

At a very early point during the course of the summing-up the learned trial judge instructed the jury, correctly, that the real issue for the jury was the issue of knowledge on the part of the appellant and each of his co-accused that the enterprise in which, in one way or another, they were all implicated was an enterprise involving the importation into Australia of prohibited drugs. His Honour told the jurors that they must bear in mind: “… Of course, that it is the knowledge in each accused which must be proved beyond reasonable doubt by the Crown. Not what you would have known, not what I would have known, not what a reasonable man or woman would have known, but the actual knowledge of these accused. Each of them.”

His Honour went on to explain to the jury that proof of knowledge in the relevant legal sense might be accomplished in any of a number of ways, of which one was the proper drawing of an inference of knowledge from relevant circumstances. His Honour gave the jury, in clear and simple language, a number of practical illustrations of the types of circumstance which might be thought relevant in the particular case. His Honour then gave the jury the following direction: “Circumstantial evidence is evidence as other evidence as is receivable in these courts and is regularly received in these courts. You must have regard for the fact that finger prints are circumstantial evidence. But in order for that evidence to be accepted beyond reasonable doubt, it must point to the guilt of the accused and be capable of bearing no other rational hypothesis.”

His Honour then gave the jury a practical example of a situation involving a number of possible explanations, each of which could be analysed and rejected until there remained only one ultimate credible explanation. His Honour rounded out that discussion as follows: “You cut off all the alternatives and what you are left with, of that you can be satisfied beyond reasonable doubt. It is not necessary to be satisfied beyond a reasonable doubt of all the matters advanced by the Crown but you must be satisfied of course beyond reasonable doubt to conclude that the circumstances indicate guilt and are capable of bearing no other rational inference.”

His Honour then gave the jury what might be described as a thumb nail sketch of, on the one hand the Crown case against each of the then accused, and on the other hand, the case presented by each such accused in answer to the Crown case against him. His Honour then gave the jury an extensive summary of the evidence that had been adduced at the hearing. His Honour next summarised the arguments put by the Crown and, variously, by the then representatives of the appellant and his co-accused.

His Honour, when summarising the Crown submissions in the case against the present appellant, said this: “As far as Chen is concerned, the Crown says – let’s put aside what Chen says for a moment, what have you got which is sustained by all the evidence in the case? That Chen was on a fishing boat with fourteen sacks of drugs. He got off that fishing boat into a speedboat with fourteen sacks of drugs. It came back to the Uniana . It was said by Chan that he undertook the re-packaging of it. It then arrives off the coast of Australia and he is in the speedboat. He is in the speedboat which brings it into Australia and he is arrested and in his bag is not only his false passport but a 9 millimetre semi-automatic pistol which only needed cocking to fire. That, the Crown says, is a very strong case of knowledge. Has Chen raised a reasonable doubt? His evidence, the Crown says, is a concoction and a fantasy. He travels to Italy without luggage and without documents or money or jobs. He came from a large Westernised city. He did not ask for a passport in China not because he would not have got one but because he already had one, a passport which shows that he has travelled around south east Asia and also into Hong Kong. The passport photos, which were his, were there to obtain the necessary visas. He was not a fare paying passenger but a drug smuggler. The Crown says that when you look to the cross-examination of him, you will dismiss his account of events and remain with the very strong case of knowingly concerned.”

The rhetorical question “Has Chen raised a reasonable doubt?” obviously caused the learned presiding Judge, upon reflection, some anxiety. His Honour indicated in the absence of the jury that he was, as his Honour put it, “a little concerned at the way … (his Honour had left that question) … to the jury.” His Honour discussed the matter with the Crown Prosecutor who made this submission: “I must confess though I am a little concerned at the way I went to the jury and I think my friend … (counsel then appearing for the present appellant) … is correct when I say – and I was in error I concede – when I said accepting all that the question is a reasonable doubt raised by what Mr Chen said. The question is, is there a reasonable doubt on all the evidence, not Mr Chen having to raise it. That is so, having said that I would submit it oughtn’t to be a submission now made particular to Mr Chen but a general submission so as to include all accused. Because I think if I am not mistaken – I certainly highlighted it in Mr Chen’s case and I may well have put it a little broadly in respect of other accused. I’d ask that your Honour direct the jury that ultimately they look at all the evidence and acquit if they (are) left with a reasonable doubt as to guilt.”

His Honour indicated that he would give such a direction and in due course his Honour did so in the following terms: “Ladies and gentlemen, I have brought you back because I undertook to say something to you before lunch, and I omitted to do it, and so I have to bring you back. It arises in Mr Chen’s case but it is applicable to all the cases. That is, that you must look to all of the evidence to see if the Crown has satisfied you beyond reasonable doubt of its case on knowing concern. You just do not look at the accuseds’ evidence but you must look to all of the evidence before you come to a conclusion in that regard.”

To the foregoing survey of the relevant portions of the summing-up, it is necessary to add but one further passage which occurred at the very end of the summing-up, when his Honour said: “Ladies and gentlemen, if at the end of your deliberations you are of the view that all or any of those alternative hypotheses have not been demolished by the Crown then of course it would follow that you must acquit. But equally so, if you (are) satisfied beyond doubt that these four men or any of them or all of them were knowingly concerned in the sense that I have explained to you, then it will be your duty to convict.”

It should be noted, also and lest there be any doubt about the matter, that his Honour gave at the inception of the summing-up the customary direction as to the onus and standard of proof.

The appellant puts, in the foregoing context, two submissions.

The first submission focuses on the passage which we have quoted in paragraph 70 above. The purport of the submission is, perhaps, best summarised in the following except from paragraph 4.3.4 of the written submissions of the appellant: “… (N)otwithstanding the general direction that was given to remedy an error, the jury was still left to determine the matter on the basis that it would be equally open on the available evidence to be satisfied that the Crown had proved its case to the requisite standard in the event that the jury rejected the case for each of the co-accused. When this ground of appeal is considered is conjunction with Ground 4(e), the appellant contends that there has been a failure to fully explain the burden of proof such that the jury would have been labouring under the misconception that the Crown stood on an equal footing with the appellant and the issue was which of the competing cases (that of the Crown or of the appellant) was to be preferred. In giving the ‘general direction’ his Honour failed to direct the jury that it was still incumbent on the Crown to prove its case to the requisite standard.”

We will deal separately, and a little later herein, with Ground 4(e). Setting aside for the moment that aspect of the present discussion, we are of the opinion that Ground 4(c) has not been established. The appellant’s submission picks up, and focuses upon, the words “equally so” in the relevant passage from the summing-up. A fair reading of the passage in the context of the summing-up as a whole seems to us to indicate that his Honour was doing no more, in the particular passage of which present complaint is made, than to reiterate to the jury his Honour’s earlier directions about the proof of an issue by means of circumstantial evidence. His Honour was re-emphasising to the jury the need for the jury to have regard not only to the rational hypothesis of guilt which the Crown sought to have drawn from the circumstantial evidence; but also to the alternative hypotheses consistent with innocence which had been propounded, variously, by the present appellant and by his co-accused. His Honour was reiterating to the jury that the Crown, as part of its over-all burden of proof, had to “demolish” each of those suggested alternative hypotheses consistent with innocence, before the Crown could have accepted by the jury the Crown’s own proposed rational hypothesis of guilt.

The second submission of the appellant is particular to Ground 4(e), although it rests factually in part upon the passage which we have quoted in paragraph 70. The appellant’s submission marries, so to speak, that particular paragraph with the additional directions that we have quoted above in paragraph 69. It is submitted that those directions were inadequate in that they did not direct the jury: “… (that the jury)… should not convict unless satisfied beyond reasonable doubt about the truth of Chan’s evidence …”

The submission is said to be supported by the decision of the High Court of Australia in Liberato v The Queen (1985) 159 CLR 507. The submission relies in particular upon a passage appearing in the dissenting judgment of Brennan J at 159 CLR at 515. The passage reads: “When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: Who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury should be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.”

The foregoing propositions have been recently considered by the Court of Appeal of the Supreme Court of Western Australia: Salmon v The Queen [2001] WASCA 270 (30 August 2001). McKechnie J, who delivered the principal judgment of the Court, and with whom the other members of the Court, (Malcolm CJ and Kennedy J), agreed on the Liberato point, said, concerning what has come to be described as “the Liberato direction”: “99. It is a counsel of prudence to give a Liberato direction in most, if not all, cases. It is a sensible direction which further emphasises the standard and the burden of proof. 100. The absence of a Liberato direction in an appropriate case will make the drawing of a conclusion that there has been a miscarriage of justice easier. 101. Nevertheless, if in Miles at par 49, Miller J was intending to lay down a principle that a Liberato direction is required as a matter of law, then with great respect, I am unable to agree. I prefer the reasoning of Murray J. 102. The absence of a Liberato direction may give rise to a miscarriage of justice. In each of Latham and Middleton the absence of a Liberato direction, coupled with positive directions given by the trial Judge in each case, meant that the Judge’s summing-up, overall, constituted a misdirection. 103. I would not elevate a Liberato direction to the status of a principle of law, the absence of which will inevitably lead to a conclusion that the learned trial Judge has erred in law.”

We respectfully agree with his Honour’s analysis.

In the appellant’s case, it was necessary that the summing-up should explain clearly to the jury the following propositions: [1] That the Crown case against the appellant could not succeed unless the Crown proved to the satisfaction of the jury and beyond reasonable doubt that the appellant had at all material times the requisite knowledge. [2] That the Crown case against the appellant on that issue was a circumstantial evidence case. [3] That such a circumstantial evidence case could not succeed unless the Crown satisfied the jury beyond reasonable doubt, that the hypothesis of guilt, which the Crown was asking the jury to infer from the circumstantial evidence placed before them by the Crown, was the only rational hypothesis available on that evidence. [4] That, in so far as there had been propounded for the consideration of the jury alternative hypotheses consistent with innocence, it was part of the burden of proof resting on the Crown to refute each and every one of those alternative hypotheses. [5] That the backbone of the Crown case was the evidence of Chan. It was accomplice evidence. It was, therefore, dangerous to convict upon it in the absence of corroboration. [6] That, notwithstanding that danger, the jury might nonetheless convict upon the evidence of Chan, although uncorroborated, provided that the jury was satisfied beyond reasonable doubt that it could safely accept as truthful, and therefore reliable, the whole, or any relevant part or parts, of Chan’s evidence.

It can be acknowledged at once that the learned trial judge did not put the foregoing propositions in so many words to the jury. It must be borne in mind, however, that the question now to be decided is not whether the words in fact used by his Honour could, or could not, or might, or might not, have been put in a form better placed to withstand the scrutiny of hindsight. Neither is the relevant question whether, with that same hindsight, it can be said fairly that it would have been prudent to have given, generally to the effect of the form suggested by Brennan J, some additional directions. The relevant question is, rather, whether upon a fair reading of the entirety of the summing-up the foregoing propositions were put, in substance, to the jury. As we have earlier herein pointed out, the proposition at [6] was not put to the jury at all; but for the reasons earlier given we are of the opinion that there was no miscarriage of justice on that score. That matter apart, we are satisfied that the entirety of the summing-up, read fairly, did sufficiently bring to the attention of the jury the substance of the remaining propositions as we have stated them. We are strengthened in that conclusion by the fact that the appellant’s counsel at trial, who was, as we have earlier noted, well experienced in the conduct of criminal trials, did not see any need to ask for any further direction of the kind now suggested; and certainly did not bring to the attention of the trial judge the dissenting judgment of Brennan J, or, indeed, any other relevant feature of the decision in Liberato .

For the foregoing reasons, we are of the opinion that Ground 4(c) and Ground 4(e), whether considered separately or in conjunction, have not been established. As to Paragraph (d)

Part of the Crown case against the present appellant’s co-offender Lau consisted of evidence of various banking transactions with which it was alleged that Lau could be connected relevantly. It is not necessary to canvass the detail of that part of the Crown case against Lau. It suffices to quote the following excerpt from a judgment delivered by the learned presiding Judge on 18 October 2000, that judgment overruling an objection taken by counsel then appearing for Lau to the admission of the banking evidence. His Honour said: “The Crown contends that Lau’s banking accounts spring to life as it were, 8 months before the enterprise when millions of Hong Kong dollars came in and equally were withdrawn in cash, usually within hours of deposit, and then to return to accounts showing modest amounts being deposited and being withdrawn, are one of several circumstances, which combine with others, shows Lau’s involvement in this enterprise.”

It is clear from a reading of the relevant portions of the trial transcript that the Crown sought to lead this banking evidence only as part of its case against Lau; and not as part of its case against any of the other three of Lau’s co-accused at trial. The present appellant now submits that this limited intended use by the Crown of the banking material was not made plain by the learned trial judge in his charge to the jury.

The appellant submits, and we accept, that it is trite law that in a trial of two or more accused it is part of the duty of the trial judge to ensure that the jury at trial considers the individual case of each individual accused separately from the individual case or cases of the other individual co-accused. We accept, also, that it is part of that duty of the trial judge in such a case to ensure that when the jury comes to consider the case of a particular co-accused, the jury considers that case upon the basis of, and only of, the evidence properly admitted in connection with the case of that particular co-accused.

Quite how that duty is to be discharged cannot be reduced to the form of a simple and all-encompassing formula that is to be applied slavishly in any and in every joint trial. In the case of a joint trial as to which it is contended that the trial judge did not sufficiently assist the jury in the separate consideration of the individual cases of the particular co-accused, it is necessary to have careful regard to the entirety of the relevant summing-up. The focus is not to see whether the summing-up, if microscopically examined, can be made to yield a useful forensic debating point. The focus, rather, must be upon the practical questions: first whether what has in fact been said by the trial judge in the particular case, can be regarded reasonably as having made clear to the jury: the need for the jury to consider separately the individual case of each of the particular co-accused; and secondly, whether the particular summing-up has in fact sufficiently isolated for the assistance of the jury the content of any evidence relevant only to the individual case of the particular co-accused.

The summing-up at the trial of the present appellant and of his then co-accused occupies, excluding applications for re-directions, 103 pages in volume 5 of the 6 volumes that constitute the appeal book. At pages 5 and 6 of that summing-up, his Honour is recorded as having given the following directions to the jury: “As you have been made aware by counsel there are in fact four trials going on within this courtroom at the same time and each accused is entitled to your separate consideration. Because one may be guilty it does not mean to say that the other three are guilty. Equally, if one is not guilty is does not mean that the other three are not guilty. You must look at each case separately and determine each case and return a verdict in respect of each case, that is, four verdicts. There is certain evidence in this case which is particular to one of the accused. The forged log for instance is evidence against Ismunandar only. The engineer’s log is evidence against Siregar only. You have to separate those two pieces of evidence when you come to consider what evidence [there] is against each of them.”

The first extended directions by his Honour concerning the banking material are recorded at pages 25-27 of the summing-up transcript. His Honour’s first words, as thus recorded, were: “Ladies and gentlemen, I said I was going to move straight onto the defence case but I return to the case of Lau and to the banking documents.”

His Honour then drew the attention of the jury to various aspects of the Crown case against Lau, in so far as that case had to do with the banking evidence. His Honour then said: “The Crown case in respect of Lau, the Crown says that the banking records showing massive withdrawals to cash, visits to Cambodia when banking activity accelerated, being on the voyage without any nautical function and his only job described by Chan was that of telephonist/interpreter, going out to get the heroin and bringing it back to the Uniana , when he had no sea experience and being arrested on the boat and having a passport on the beach in Australia. When you look at all of those circumstances together the Crown says that the only conclusion that you can come to was that he was knowingly concerned.”

Much later in the summing-up his Honour returned to a canvass of the Crown case against each of the four then co-accused. Each such case is canvassed distinctly and separately. It is only in connection with that canvass of the Crown case against Lau that any analysis is made of the evidence concerning the banking transactions. His Honour concludes that canvass of the Crown case against Lau by saying: “The Crown says that that 18.4 million dollars is one of the factors which you can consider. The Crown says that this shows massive withdrawals to cash and visits to Cambodia when banking activity accelerated. He is next found on the voyage without function. His only job was as a telephonist and interpreter. He goes out to get the heroin and he brings it back and he is arrested on the boat which has just recently had it on board. The Crown says when you put all of that together there is a very strong, indeed irresistible circumstantial case of knowledge in Lau.”

Still later in the summing-up, his Honour canvassed similarly the individual cases that had been put on behalf of the four then co-accused. It is only in connection with that canvass of the case put forward on behalf of Lau that his Honour says anything further about the evidence of the relevant banking transactions.

We are of the opinion that a fair reading of the entirety of the summing-up shows that it was structured in such a way as kept distinct and separate at all times, what was being said in connection both with the four individual Crown cases and in connection with the four countervailing defence cases. We are not persuaded that a fair reading of the entirety of the summing-up gives rise to a reasonable apprehension that the jury impermissibly used in the case of the present appellant the banking evidence, which the Crown had adduced in connection with the case of Lau alone.

We are strengthened in this view by the fact that, as we have earlier herein pointed out, the present appellant was represented at trial by counsel well experienced in the conduct of criminal trials; and no application was made for a re-direction according with the complaint made in the present ground of appeal.

We are, therefore, of the opinion that Ground 4(d) has not been made good. As to Paragraph (f)

The learned trial judge began his Honour’s summing-up with what might be called conventional directions as to their respective functions, of his Honour and of the jury. His Honour, explaining to the jury that they were the sole judges of the facts, told the jury that it was for them to assess the witnesses whom they had seen and heard; that it was open to the jury to accept the whole or part only of what any witness had given in evidence; that in so assessing any particular witness the jury should keep in mind certain factors which his Honour then outlined; and that the jury, in drawing inferences from facts admitted or proved, needed to be careful to proceed in a rational rather than in an instinctive way. It was immediately following those directions that his Honour gave the following direction, of which the present appellant complains: “There has been cross-examination on credit, that is, cross-examination on matters which are not central to the case but the aim of which is to show the witness in such a light that you might think less of his evidence and place less credence in it. This has been done by putting to a witness prior inconsistent statements that have been made on a previous occasion to demonstrate that the witness cannot be relied upon. They are not issues central to the case, they lie just outside that and are used simply to, if successful, to indicate to you that you should not put any credence in that witness’s evidence.”

It is submitted that this direction given by his Honour was erroneous in that it was based upon a misunderstanding of the purpose of cross-examination on a prior inconsistent statement in a case to which the provisions of sections 102 and 103 of the Evidence Act 1995 (NSW) are applicable. It is submitted that what his Honour told the jury does not accord with the law as established by the recent decision of the High Court of Australia: Adam v The Queen (2001) 183 ALR 625.

The following propositions can be drawn from the joint judgment of Gleeson CJ, McHugh, Kirby and Hayne JJ in Adam : [1] Evidence that Chan had given prior inconsistent statements, (as he plainly had done), was relevant to his credibility. [2] The evidence of what he had said in those prior inconsistent statements did not relate only to his credibility, but was relevant also to other issues arising in the trial of the appellant. [3] Because of this fact, that is to say, because evidence of the prior inconsistent statements was relevant to more than the bare issue of Chan’s own credibility, the credibility rule in s 102 was not engaged. [4] It was, therefore, unnecessary to consider the operation of the exception, provided by s 103, to the credibility rule established by s 102. [5] The evidence of the prior inconsistent statements, because it extended to facts in issue beyond the bare fact of Chan’s own credibility, was within the exception provided by s 60 of the Evidence Act to the hearsay rule, and was admissible as evidence of the truth of the contents of the prior inconsistent statements.

It is undoubtedly the case that the learned trial judge did not direct the jury in the precise terms of the propositions that we have summarised above. It becomes, therefore, necessary once again to look carefully, not at what his Honour did not do, but at what his Honour did. We have previously herein drawn attention to various things said by his Honour to the jury in connection with the way in which the jury should approach the evidence given by Chan, bearing in mind that there were, as his Honour told the jury: “big discrepancies within the evidence itself”. We need not repeat that material.

His Honour, as recorded at pages 9 and following of the summing-up, specifically drew the attention of the jury to conflicting accounts given by Chan of his relations with Lau. His Honour explained to the jury in careful detail a range of matters which it would be open to the jury to take into account in connection with their assessment of Chan’s evidence. His Honour told the jury, in terms, that it was entirely a matter for the jury whether the jury accepted a particular version given by Chan, rejecting contrary versions given by him; or whether the jury rejected all of the versions given by Chan. We think that a fair reading of the entirety of the relevant portions of the summing-up justifies a conclusion that his Honour made it clear to the jury that, in so far as Chan had given inconsistent versions of relevant facts, it was open to the jury to accept as truthful in fact any part or parts of any one of those inconsistent statements. No doubt trial judges, guided by the decision in Adam , will give in future summings-up, directions about prior inconsistent statements in a form according more particularly with the substance of the propositions of law that we have extracted from the joint judgment in Adam . We are satisfied, however, that the essence of what was put to the jury in the present case sufficiently left to the jury the substance of those propositions.

We are, therefore, unpersuaded that Ground 4(f) has been established. Ground 5 “Generally, there has been a miscarriage of justice.”

It is to convenient to begin by quoting the brief written submission of the appellant in connection with this ground: “Even if this Court finds that each ground of appeal has failed individually, the appellant submits that the combination or aggregation of the defects identified in the various grounds of appeal advanced by the appellant constitute a miscarriage of justice warranting appellate intervention. Despite the strength of the Crown case, the appellant did not have, as he was entitled to have, a fair and proper trial.”

For the reasons previously herein given, we have concluded that, indeed, “ each ground of appeal has failed individually”. We do not see any remaining basis upon which to found properly a finding that the appellant was denied “a fair and proper trial” . Summary

For the whole of the foregoing reasons we have come to the conclusion that the appeal against the present appellant’s conviction should be dismissed. The Appeal of Lau

Judge Shadbolt, in his Honour’s remarks on sentence, summarised as follows the case against the appellant Lau on the issue of knowledge: “(a) … Lau recruited the witness Chan by offering him a job when he was unemployed. (b) He arranged for Chan to go to Australia to choose a beach suitable to land a speedboat. He also arranged for him to go to China to meet the boss Fei Lo Nam and required him to take his papers. (c) When Chan returned from the [reconnaissance] mission to choose a beach in Australia he went with Lau to Cambodia. It is a reasonable conclusion from the evidence that a man called Poon accompanied them on at least part of that journey. There is evidence that Poon, to all intents and purposes, owned the Uniana. It was he who renamed it, re-registered it, and personally arranged and paid for refuelling it by going to Singapore to meet representatives of the fuel vendors. (d) Lau [boarded] the Uniana, according to Chan, as an interpreter, although it became clear under cross-examination that no interpreter was required as Chan spoke English as did Mandagi, the captain. (e) He went in a speedboat with Chan to receive the heroin from the delivery vessel in the Andaman Sea. He was not a sailor. He had no experience of small speedboats and appeared to fulfil no function other than to receive the heroin. (f) He answered the telephone calls from mainland China, ostensibly from a man named Fei Lo Nam, and conveyed instructions contained in those calls to Chan. The use of the telephone continued after the Uniana had reached a position off the coast at Port Macquarie and the speedboat had been launched. (g) Through Lau’s accounts passed $18,400,000 HK approximately, much of it by way of cash deposits which were quickly credited and withdrawn. Activity in this account always accelerated around the time that Lau made one of his many trips to Cambodia. This activity subsided when funds were totally withdrawn only days before the Uniana sailed.”

Lau, alone of the four co-accused at trial, did not give evidence at trial. He was represented by Senior Counsel well experienced in the conduct of criminal trials. The defence at trial consisted, in significant part, of a strong attack upon the reliability of the witness Chan. The issues thereby raised are summarised sufficiently for present purposes in the following two further passages taken from the remarks on sentence: “Most of the Crown’s evidence in respect of Lau’s specific involvement came from the witness Chan and the Crown led from him a record of interview which he had given police at Port Macquarie before he knew that Lau had been arrested. When he strayed from this document he was cross-examined and attested in accordance with the statements which he had given police. He was cross-examined by [senior counsel] and from another statement which he had made the following year and an exculpatory account emerged in which Chan had recruited Lau. Lau was employed as an interpreter and telephonist. He knew nothing about the heroin and when it emerged that that was what they had brought on board, he disassociated himself from the enterprise. Yet the jury convicted. This could only have occurred if the jury had rejected this second account and accepted the Crown’s submission that Chan had been telling the truth to police in the first instance. This coupled with the financial evidence, the general evidence of the vessel, its modification and its route to Australia, was sufficient, it appears, to convince the jury beyond reasonable doubt of Lau’s guilt.”

The present appellant, and his co-appellant Chen, were represented in this Court by different solicitors but by the same counsel. The grounds of appeal of each of those two appellants are not identical, but there is a substantial overlap between the two sets of grounds of appeal. This fact makes it possible to deal more briefly with the present appellant’s appeal than with the appeal of Chen. We shall deal with the present appellant’s grounds of appeal in the order in which the grounds were notified. Ground 1, Ground 2 and Ground 3(a)

These grounds correspond to Grounds 1, 2 and 3(a) in the appeal of Chen. What we have earlier said in connection with these grounds when considering the appeal of Chen applies in the case of the present appellant. Ground 3(b) “The trial of the appellant was rendered unfair in that the Crown Prosecutor failed to act fairly in the discharge and performance of her functions by failing to put the allegation to Chan Chi Keung that he shared the same cell as the appellant and as a consequence tailored his evidence to support the Appellant’s case.”

Shortly after the witness Chan was arrested he gave a statement to the police. Speaking broadly, but sufficiently for present purposes, that statement inculpated the present appellant.

At the time of his giving that statement to the police, Chan did not know that the present appellant, too, had been arrested and was in custody.

Shortly thereafter, the present appellant and the witness Chan were removed to the same place of detention and were housed for a period in the same cell.

Sometime thereafter the witness Chan made an induced statement to the investigating police. Speaking broadly, but sufficiently for present purposes, that statement exculpated the present appellant.

It was the Crown case that Chan had told the truth in his first statement. The Crown obtained leave to cross-examine Chan; and established by that cross-examination that Chan, when first interviewed by the police, did not know the whereabouts of the present appellant; that Chan had not provided to the police the name of the Uniana notwithstanding that he had been travelling on it for some weeks; and that the present appellant was a friend of Chan’s.

The Crown did not cross-examine Chan so as to suggest to him that it had been only after he had found out that Lau had been arrested, and had spent some time sharing a cell with Lau, that Chan had made the subsequent statement exculpating Lau. The Crown, having sought and obtained leave to cross-examine Chan as an unfavourable witness, indicated to the trial judge that it was intended to cross-examine Chan about whether he had made a prior inconsistent statement, that is to say his original statement to the arresting police; and so to establish that Chan had in fact made a prior inconsistent statement. The Crown Prosecutor said in terms: “I don’t propose to ask him why he said it or why he has changed his mind or anything of that kind. I am going to limit myself to that exposure of inconsistency.”

Chan was extensively cross-examined, of course, not only by the Crown Prosecutor, but by counsel appearing for the four co-accused. Senior Counsel then appearing for the present appellant cross-examined extensively, and so as to establish the detail of the induced statement made by Chan in which he, Chan, effectively exculpated the present appellant. The Crown Prosecutor did not re-examine so as to suggest to Chan that the reason why he had made that inconsistent induced statement was that, having discovered that his friend Lau had been arrested, he, Chan, had decided to change what he had previously said about Lau and so give what help he could to his friend.

Sometime later during the trial, the Crown sought to lead evidence of the relevant Corrective Services records establishing the fact that Chan and the present appellant had shared a cell at a time between the making of Chan’s original statement to the arresting police and the making of his subsequent induced statement. Senior Counsel then appearing for the present appellant objected strenuously to such a course being allowed. The learned trial judge ruled that the evidence would be admitted because, in his Honour’s view the Crown was entitled to lead evidence which would establish, if accepted, that there had been a reasonable opportunity for the present appellant and Chan in effect to put their heads together. His Honour said that he regarded such evidence as admissible evidence “in the sense of a shield rather than a sword”. This expression seems to us to be a reference to the fact that the cross-examination of Chan by the present appellant’s then Senior Counsel had made completely clear that the appellant’s case was that Chan had told lies in his original statement; that Chan ought to be accepted in so far as he admitted having done so; and that Chan should be accepted, also, as having been truthful in the version given by him in his subsequent and induced statement. We understand his Honour to have been expressing the view that the Crown was entitled to meet that case by showing that in fact Chan and the present appellant were friends who had shared a cell after their respective arrests; and that those circumstances might well support the drawing of a reasonable inference that, in truth, it was the original statement that was reliable, and the subsequent and induced statement that was unreliable.

It is submitted that the Crown Prosecutor acted unfairly in not putting to Chan the proposition that, in the circumstances above referred to, he had tailored his later and induced statement so as to favour the present appellant. This unfairness, it is submitted, led to a miscarriage of justice.

As to the suggested unfairness, it needs to be remembered that Chan was never put forward by the Crown as, simply and unreservedly, a witness of truth. Had the Crown asked the question which it is now submitted that the Crown ought to have asked, it is more probable than not that Chan would have responded in the negative; and that the Crown would have gone to the jury upon the basis that that answer was another piece of Chan’s evidence which ought to be rejected as untruthful. Had that happened, we do not see either how the Crown case would have been significantly weakened, or how the appellant’s case would have been significantly strengthened. Even were it to be held that there had been some unfairness in the omission to put the suggested question, we would not accept that the present appellant lost on that account the fair chance of an acquittal. Ground 4 “The trial judge failed to apply the proper test in determining to admit the banking evidence relating to the appellant as circumstantial evidence proving knowledge of the appellant.”

We have previously referred to aspects of the banking evidence with which the present ground of appeal is concerned. The appellant contends, in connection with the present ground of appeal, that the learned trial judge admitted the evidence upon a basis that was wrong in law. The appellant points to the following passage in the ruling pursuant to which the evidence was admitted: “The presentation of the circumstantial case to prove knowledge must, if it is to go forward to the jury, reach a prima facie level, which merely means that it is one which if not answered by an accused could properly found a conviction. This is not to reverse the onus of proof, this is merely to require if there is not to be a conviction that the accused demonstrates an alternative hypothesis consistent with innocence and so provides reasonable doubt. Often enough the Crown’s case carries with it elements of the alternative hypothesis and the Crown would submit that the jury accept on a proper basis some elements and reject on equally properly basis others. Sometimes, it remains with an accused entirely, should he wish to raise an alternative hypothesis, consistent with innocence.”

It is submitted for the appellant, and omitting references to authorities cited, that: “It is not for the appellant to demonstrate that he has an alternative hypothesis consistent with innocence, but the obligation is imposed on the Crown to exclude such a hypothesis. It is a corollary of proof beyond reasonable doubt that the jury must acquit if there is a reasonable hypothesis consistent with innocence.”

It seems to us that the challenged passage is not fundamental to the reasoning upon which his Honour’s ruling actually rests.

The question for his Honour was, simply, whether the banking evidence, which the Crown wished to lead, was relevant in the sense contemplated by s 55(1) of the Evidence Act 1995 (NSW): that is to say, whether it was evidence that “if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue”.

His Honour dealt with that question as follows, in a passage immediately preceding the passage which we have earlier quoted: “There appears to me to be no doubt that money to this order coming from unexplained sources through clandestine but not illegal channels into accounts and from those accounts to others where it is withdrawn in cash to be expended on what and where no-one knows, is a set of circumstances which may not of itself point to heroin purchases. It could equally point to arms dealing or any number of such activities which lie at the margins of criminality, but coupled with the journey on the ship, for no ostensible (or believable) reason, to a place in the Bay of Andaman where a speedboat was launched and to assist in the bringing back on board the Uniana one third of a ton of heroin powder and to travel with that heroin to New South Wales where it was to be off loaded and taken to shore may together indicate knowledge.”

Later and at the conclusion of his ruling, his Honour said: “It is my view that the evidence of the banking arrangements and the accounts which Lau maintained is evidence which, with other evidence, could, on the face of it, prove knowledge and in consequence it is relevant and it is admissible and I would not exercise my discretion to exclude it.”

We are clearly of the opinion that the evidence was relevant and therefore admissible. It is not now submitted that the evidence, if relevant and therefore admissible, ought nevertheless to have been excluded in the exercise of some relevant discretion.

In those circumstances, we are of the opinion that this ground of appeal has not been established. Ground 5 “The trial Judge erred in failing to grant a separate trial of the Appellant given the evidence as adduced at trial.”

This ground of appeal was not pressed. Ground 6(a) and (c)

These two grounds of appeal correspond to Grounds 4(a) and (e) in the appeal of Chen. What we have earlier written in connection with Chen’s Grounds 4(a) and (e) applies to the present appellant’s Grounds 6(a) and (c). Ground 6(b) “There was a miscarriage of justice in that the trial Judge erred in his directions to the jury … (b) By failing to give a proper and/or adequate direction to the jury regarding the use to be made of the banking evidence led by the Crown.”

It is convenient to begin by quoting the relevant portions of the written submissions of the appellant. Page references to the summing-up have been omitted. “His Honour gave a direction to the jury regarding the nature of circumstantial evidence and he twice directed the jury on the banking evidence in relation to the Crown’s case against the appellant. His Honour did not seek to balance the directions that he gave regarding circumstantial evidence (including the banking evidence) with a direction that the jury must acquit the appellant in the event that there was a reasonable hypothesis consistent with innocence. Such an inference was clearly open when one had regard to his Honour’s finding that the banking activity was otherwise legal in nature.”

In our opinion this submission does not fairly reflect what in fact the learned trial judge said in the relevant parts of his Honour’s summing-up. It is the case that his Honour gave early in the course of the summing-up, and in terms to which we have previously herein referred, a clear and correct direction concerning circumstantial evidence and concerning the proof of a Crown case by circumstantial evidence. It is true, too, that his Honour twice summed-up to the jury the Crown case in connection with the banking evidence. It is, however, the case that his Honour summed-up, correspondingly, twice to the jury the case which had been put by the present appellant in connection with the Crown’s banking evidence. Upon the second of those occasions, his Honour introduced the particular section of the summing-up by saying: “The cases for the accused have this feature in common, that each of them advances a hypothesis consistent with innocence.”

We point out, yet again, that the correct approach for present purposes is one that reads fairly the entirety of the summing-up. Approached in that way, we are wholly unpersuaded that his Honour’s relevant directions were unbalanced. We reject the present ground of appeal. Ground 6(d)

This corresponds with Chen’s Ground 4(f), and fails for the same reasons. Ground 7 “Generally there has been a miscarriage of justice”.

This ground corresponds to Ground 5 in the appeal of Chen. What we have written in relation to that Ground 5, applies also to the present appellant’s Ground 7. Summary

For the whole of the foregoing reasons we have come to the conclusion that the appeal against the present appellant’s conviction should be dismissed. Ismunandar and Siregar: the background

In order to understand the arguments advanced on behalf of Ismunandar and Siregar to this Court, it is useful to consider the background affecting them. The arrival on the Uniana

Ismunandar, an Indonesian, was the chief officer of the Uniana , and was arrested on board that vessel at about 7.30 am on 14 October 1998, together with other members of the crew. Siregar, also an Indonesian, was the chief engineer. He had earlier travelled ashore on the speedboat which landed at Grant’s Beach, and was arrested on landing at about 3.30 am. The captain of the Uniana , another Indonesian, was named Mandagi.

In May 1998 Poon, a Hong Kong national, made arrangements for a vessel called the Ming Star to be renamed the Uniana . A certificate of registration for Belize was issued on 27 May 1998. From 25 May 1998 Siregar served as chief engineer, having been recruited in Singapore by a person called Frankie.

Mandagi, Ismunandar and the other members of the crew of the Uniana arrested on 14 October 1998 (apart from Siregar) in the four or five weeks before 10 August 1998 had been onboard a vessel called the On Shan at anchor outside the port limits of Hong Kong. Ismunandar said he had been recruited to work on the On Shan by Frankie while in Singapore in mid 1998. He and Mandagi had documents containing Frankie’s telephone number; Frankie was an associate of Poon’s; Frankie had also recruited Siregar to work on the Uniana . Ismunandar had spent four or five weeks painting and chipping rust. In mid July 1998 Chan visited the vessel. On 14 August 1998 Ismunandar said that two Chinese men came onboard the On Shan, one of whom was Chan. Mandagi then informed the crew in the presence of the two Chinese men that the On Shan had been sold, their jobs were at an end, but that jobs were available on another vessel which turned out to be the Uniana . All but one of the crew accepted the offer. He was the chief engineer. The Uniana did not need a chief engineer, since Siregar had been acting as its chief engineer since May.

On the same day, all the existing crew of the Uniana except Siregar left that vessel. They were at once replaced by those coming from the On Shan. The structure of the Uniana

The Uniana had been designed as a well deck fishing vessel by Japanese shipwrights. It was 32 metres long and had a gross tonnage of 246 tonnes. To the casual observer it looked like a typical dilapidated Japanese or Korean fishing boat. It continued to present that appearance up to the time of its arrival in Australian waters on 12 October 1998. But it had undergone significant modification into a small cargo vessel, though one which could carry very little cargo. It could carry very little cargo because 8 metres of the cargo hold was taken up by a speedboat, the remaining 6 metres of cargo space was divided by a bulkhead, and no attempt had been made to utilise the corridors running port and starboard exterior to the cargo hold area for cargo. The deck had been raised to accommodate the speedboat on a fixed cradle in the specially constructed hold. There were spaces beneath the deck originally used for fish storage which were converted into fuel and water tanks. A curious feature of the arrangements was that there was a small boat on deck aft, which made the speedboat, taking up storage space, superfluous. Siregar admitted that in his experience it was very unusual for a speedboat to be housed in the cargo hold within a vessel carrying any cargo. He also thought it strange to have a speedboat in the cargo hold instead of on deck, and was quite surprised about it. He raised it with Mandagi but got no explanation. Another feature of the Uniana was that it had a derrick capable of being used to raise the speedboat from its cradle under the deck and launch it over the side into the sea. In bad weather two to three men would be needed on each side of the speedboat to steady it, one or two men would be needed to man the port and starboard slew ropes, one man would be needed to operate the winches, and one man, probably the first officer, would be needed to supervise the operations. If the speedboat were lifted aboard again with an additional 400 kilos, more hands would be needed. And if the speedboat, with the extra 400 kilos, were relaunched into the sea in poor conditions at night, it would be desirable to have as many hands on deck as possible. Since there were only 11 crew members when the Uniana approached Australia, the probabilities of both Siregar and Ismunandar being involved in the operations of lowering and raising the speedboat to be described below is high.

The Uniana had three large fuel tanks and a fresh water tank under deck. A chamber between the water tank and one of the fuel tanks was constructed as a void space with a valve capable of flooding the chamber with sea water: that valve had been installed recently. It is difficult to see that that chamber had any legitimate or conventional nautical purpose. There was evidence that the drugs imported were in fact stored there.

While the Uniana was moored outside Hong Kong in the period before 14 August, Siregar observed Chan and two welders come on board the Uniana in order to extend the boom arm on the derrick so as to enable the speedboat to be taken onboard. He answered questions from Chan about the welding operation.

On about 10 August 1998 the speedboat was loaded into the Uniana .

In short, the Uniana , while maintaining its dilapidated exterior, had been modified into a vessel with adequate fuel and water capacity to travel long distances without cargo, and with a speedboat capable of picking up and dropping drugs. Its engines and steering gear were in good order. A new crane had been installed to raise and lower the speedboat, and having apparently only that purpose. The Uniana had been converted into a smuggling vessel. The voyage of the Uniana to the Andaman Sea

On 15 August 1998 Chan and Lau, nationals of Hong Kong, boarded the Uniana . On the same day the Uniana left Hong Kong at 5 pm. Apart from Chan and Lau, there were 11 crew members onboard. Ismunandar was the officer in charge of the 4 pm–8 pm watch. He did not fill in the log because it had already been filled in. He queried this with Mandagi, who gave no explanation. At the end of the shift Mandagi said the vessel was going to the Andaman Sea to collect some people. According to Ismunandar, about three days after the vessel left Hong Kong he saw the speedboat in the cargo hold after the canvas cover and hatch covers had been removed. At about the same time, according to Ismunandar, Mandagi said the vessel was going to the Andaman Sea to pick up an important person with his belongings and other important things to be taken to Australia. According to Siregar, Mandagi said they were going to pick up people.

About 5 September 1998 the Uniana reached international waters off the coast of Burma and Thailand in the Andaman Sea. She there began to wait. Ismunandar admitted that on Mandagi’s instructions he falsified the ship’s log to avoid recording the voyage from Hong Kong to the Andaman Sea, which was “highly irregular”. Further, the only engineer’s log found in the Uniana began on 22 September 1998 after the vessel had left Singapore for Australian waters: as chief engineer, Siregar was responsible for any falsification of the ship’s documents by failure to keep an engineer’s log.

While the Uniana waited, Lau and Chan engaged in telephone calls by satellite telephone.

After the Uniana had waited about 10 days, the speedboat was lowered onto the high seas one night, lit only by torchlight, and driven by Chan, with Lau onboard, to another vessel. Rice sacks containing heroin were placed onboard and Chen also boarded it. The speedboat returned to the Uniana and was raised onboard. Both Ismunandar and Siregar participated in the lowering and raising of the speedboat. Ismunandar saw both Chen and the rice sacks. He said he thought Chen was the important person to be smuggled into Australia and that the sacks were his personal belongings. Siregar said he saw the sacks but not Chen.

The heroin in the rice sacks was repacked below deck. The speedboat engine had been damaged in the course of taking onboard the rice sacks. Siregar denied that Chan was attempting to work out what was wrong with it, that he looked down through one of the open hatches to see what Chan was doing, and that he saw Chan repacking the heroin. Ismunandar accepted that as chief officer it was his responsibility to ensure the safe stowage of cargo in order to prevent it moving about while the Uniana was at sea. He said he did not do this. He denied that the reason he did not do this was because he knew others would repack it. He said he thought the bags were the personal possessions of Chen, the man being smuggled. He denied knowing of any repacking during his 4 am–8 am watch, denied seeing any light from the hatch covers despite the fact that it was dark until 7am, and denied that the heroin was stowed in the void chamber below the cargo hold. From the Andaman Sea to Singapore and Australia

The Uniana then went to Singapore to be bunkered outside port limits from 15 September 1998 pursuant to arrangements made by Poon and Frankie. Frankie came onboard. One hundred tonnes of marine gas oil were ordered, but only 65.8 tonnes were actually loaded. Five drums of lubricating oil were loaded. Poon paid for the supplies. The refuelling receipt was signed by Siregar: he could not explain why it showed, falsely, that the next port to which the Uniana was travelling was Japan.

The Uniana in fact sailed to Australia and came near Port Macquarie on 12 October 1998. The speedboat was launched in the evening of 12 October 1998, but the journey could not continue because of bad weather. It was launched again at 9.45 pm on the evening of 13 October 1998. Mandagi instructed Siregar to board the speedboat. On arrival Chen, Chan and Siregar carried bags ashore before they were arrested. The Crown case against Ismunandar as accepted by the jury

The trial judge summarised the Crown case against Ismunandar thus: “a) That Ismunandar was recruited by drug smugglers for this enterprise. b) He was the Chief Officer, or Mate, of the ship. c) He had been waiting for six weeks for the Uniana to sail. d) He played his part in falsifying the log so that it would show a route from Hong Kong harbour, where it had never been, to Manila harbour, where it was never to go, and thence to New Zealand. e) His duties, that of overseeing the cargo, if any, the checking of the equipment and the inspection of the water tank were apparently ignored. f) He was responsible in part for the course which the ship actually took as shown on the charts. g) He played his part on deck, launching and retrieving the speedboat.”

The trial judge summarised Ismunandar’s defence thus: “He gave evidence in which he maintained that he had no idea that the ship was carrying heroin. What he had been told was that they were to sail to the Andaman Sea and there pick up a rich Chinese with his belongings. He had not seen the speedboat when he came on board because he had been told by the captain that there was no cargo. He had not checked equipment because he had been told that it was unnecessary and he had failed to fill in the log on each of the two watches a day that he had stood because he had been so directed by the captain. He had participated in falsifying the log at the captain’s direction.” As the trial judge said, the jury must have rejected the evidence in which Ismunandar propounded that case. The Crown case against Siregar as accepted by the jury

The trial judge summarised the Crown case against Siregar thus: “a) He was in charge of repairs on the Uniana in preparation for a long sea voyage. b) He was present when the derrick was lengthened. c) He claimed no knowledge of the destination of the ship or the duration of the voyage which would have made it impossible for him to ascertain the amount of fuel required. d) There was no engine room log until one was commenced on 14 September, the approximate date when the actual course of the Uniana intersected the falsified course from Hong Kong. e) His denial that he did not know of the secret compartment was impossible to reconcile with his position as chief engineer on a small ship when this compartment lay between fuel tanks and water tanks. f) He signed a false receipt for the fuel taken on at sea, south of Singapore. g) He is seen as one of the three figures on Grant’s Beach each of whom was pulling bags from the surf and taking them up the beach. h) He was the engineer responsible for the maintenance of the speedboat engine, its repair at sea in the Andaman, the testing on two occasions off Sulawesi, and he accompanied the heroin in the speedboat to Grant’s Beach.”

The trial judge summarised the defence case as advanced in evidence by Siregar thus: “He gave evidence in which he said that he knew nothing of heroin and the Golden Triangle and was merely carrying out the instructions of his captain and did not even know the destination of the vessel. Under cross examination it was clear that he did know where the ship was going. He had no explanation for his signing of the false receipts for fuel or his possession of one of the Prada bags identical to those used for the repacking of the heroin. Further, his denial of being in the hold the night the heroin was repacked was in sharp conflict with Chan’s evidence that he was down there attending to the motor boat.”

Again, as the trial judge said, the jury must have rejected the evidence through which Siregar’s defence was advanced. Ismunandar Grounds 1 and 2 and Siregar Grounds 1 and 2: Separate trials and limits on cross-examination The grounds of appeal

Ismunandar relied on the grounds in a document entitled “Grounds of Appeal”, and also on a document entitled “Amended Grounds of Appeal”.

Paragraphs 1 and 2 of the Grounds of Appeal were: “1. His Honour erred in failing to grant the appellant a separate trial. 2. (a) His Honour erred in restricting cross- examination of the accomplice Chan in respect to (i) Chan’s role in the operation to import the heroin particularly in relation to the co-accused Khong Hoi Lau; (ii) Chan’s pending appeal against the severity of his sentence; and (iii) Chan’s reluctance and/or alleged inability to give evidence against those arrested on the beach awaiting the arrival of the heroin. (b) His Honour erred in rejecting the tender of the passport photo Chan had in his possession upon landing at the beach.”

It is convenient to take these grounds with Grounds 1 and 2 relied on by Siregar in his Further Amended Grounds of Appeal which are: “1. The Trial Judge erred in limiting the cross examination by the defence of the witness Chan Chi Keung (‘Chan’) concerning his dealings with the Chinese organisation. 2. His Honour erred in rejecting the tender of Chan’s passport.” Procedural background

The procedural background is as follows.

On 17 October 2000, before the accused were called on to plead, the counsel then appearing for Ismunandar made an application for a separate trial on the basis that the evidence against his client was significantly weaker than that against the other three accused. After discussing the background facts and the authorities, the trial judge rejected the application. Ismunandar argued on appeal that the trial judge misapplied the relevant principles, mainly so far as the trial judge had found that there was no “risk that the case against the others would make the case against him stronger and improperly so”.

Counsel for Ismunandar on the appeal contended that the cases against Chen and Lau were much stronger than the case against his client. He said the prejudice of which he complained did not flow from the admission against his client of otherwise inadmissible evidence, but from the trial judge’s restriction of the cross-examination of Chan conducted on his behalf.

Pausing at this point, in our opinion the contention that a separate trial should have been ordered must fail. If the only vice in the joint trial arose from judicial rulings about cross-examination made on 26 and 30 October 2000, there cannot have been any error in the decision made on 17 October 2000 to permit the joint trial to start. Further, counsel for Ismunandar at the trial indicated on 30 October 2000 that he was not making any application for a separate trial at that stage. For the trial judge to continue with the joint trial at that stage was thus not erroneous. The argument to this Court was essentially that the convictions could not stand because the fact that the trial was joint created, in the events which happened, a miscarriage.

The objections and rulings of which complaint is made arose in the following way.

On 26 October 2000 Chan was being cross-examined by counsel for Ismunandar. He had been in the witness box since 18 October. He had been called by the Crown, had given brief evidence in chief, had given extensive evidence under questioning by the Crown after a successful application under s 38 of the Evidence Act 1995, and had been extensively cross-examined by counsel for Lau, Chen and Siregar. The cross-examination by counsel for Ismunandar proceeded for 34 pages until Chan was asked whether it was Lau who had recruited him. His answer was objected to as non-responsive by counsel for Lau. After argument about that objection, the trial judge said: “I’m going to preclude you asking those questions, any question which tends to show that Chan is more or less important than Lau or that Fei Lou Nam does nor doesn’t exist. Anything within that kind of area I am going to preclude you on the basis it can have no relevance to your case.”

Questioning then proceeded without incident until Chan was asked questions about events after the rice bags were transferred by the speedboat to the Uniana on 15 September 1998. The transcript then records: “Q. You told us that Lau wanted nothing to do with this operation after these bags had come on? HIS HONOUR: I reject that question. [COUNSEL]: Q. You say that there was a note written in Chinese that had the details with the blocks on it? HIS HONOUR: I reject that question, simply on the basis of relevance … to your case. [COUNSEL]: I won’t press it at this stage your Honour.” There was no complaint about the rejection of the latter question in this appeal.

A little later Chan was then asked whether he was going to give evidence against the four Chinese men arrested near Grant’s Beach on 14 October 1998 who, on the Crown case, were to take receipt of the drugs. The trial judge rejected the question, and then rejected a question about whether Chan’s appeal on sentence was still on foot. After the next departure of the jury from court, the trial judge invited counsel for Ismunandar to explain why the rejected questions were relevant. That argument continued on the next sitting day, 30 October 2000. As a result, the trial judge decided that he would allow questions about the relative involvement of Chan and Lau. The trial judge also decided that he would not allow questions about Chan’s appeal, and about whether Chan was proposing to give evidence against the four Chinese men arrested at Grant’s Beach. The trial judge said the questions were irrelevant. Thereafter the cross-examination of Chan continued for about another 40 pages.

The Crown submitted to this Court, and there is great force in the submission, that it is almost impossible to work out from the transcript precisely why counsel was contending that the requested questions were relevant. The appellants’ arguments

The arguments of Ismunandar and Siregar to this Court were as follows. The arguments were advanced primarily by counsel for Ismunandar and adopted by counsel for Siregar.

Counsel for Ismunandar complains that the trial judge was wrong in rejecting questions about the extent and nature of the relationship between Chan and Lau and the relevant importance of Chan in the conspiracy. Whether or not he was initially wrong, he eventually permitted that type of questioning, and the complaint is baseless.

To this Court counsel for Ismunandar also complains that the trial judge was wrong in refusing to permit an examination of the relationship between Chan and the four Chinese men at Grant’s Beach. That was not what the trial judge did. All he did was refuse to permit questioning about whether Chan would give evidence against them. Whether he did was a matter outside his control and within the control of the Crown, and hence was not something that he could usefully speak about. In any event, Crown counsel told the court that the Crown did not propose to call them. In due course counsel for Ismunandar said he withdrew the question. And even if the debates between the trial judge and counsel are read as indicating a complete rejection of any questioning about the relationship between Chan and the four Chinese men – an issue difficult to deal with, as Crown counsel pointed out to the trial judge, except by consideration of specific questions one after the other, and a conclusion that it was unlikely that the trial judge would have come to in the absence of specific questions to rule on – that conclusion was justifiable. Counsel for Ismunandar said he wished to show that Chan was seeking to protect other members of the syndicate. He accepted that he had no instructions from Ismunandar that Chan knew anything about the four men on the beach and there was no evidence that he did. The relations between Chan and the four Chinese men on the beach were incapable of casting light on what Ismunandar had done and seen and what inferences as to his knowledge could be drawn about his experiences of what he had done and seen. A minimisation by Chan of their role had no impact on the strength or weakness of the case against Ismunandar.

Finally, to this Court counsel for Ismunandar complained that his predecessor was prevented from asking about Chan’s appeal against sentence. We agree with the trial judge’s view that that line was irrelevant. The extent of Chan’s co-operation with the authorities and the possible effects on his reliability had been fully explored. The fact that he might seek to persuade an appellate court that his sentence was too heavy did not bear on his reliability. The fact that he might be seeking to minimise his role was relevant to his reliability, but the fact that, whatever his role, he was seeking to have his sentence reduced on appeal was not. It is highly unlikely that his performance as a witness in the trial before Shadbolt DCJ would assist in reducing his sentence, though an unsatisfactory performance might lead to its being increased otherwise than on appeal. Even if Chan had any personal perception that his appeal prospects would be improved by taking a certain testimonial line, it is highly unlikely that that would have led to any risk of a miscarriage of justice in view of the numerous positions Chan had already adopted on various issues at various stages, and the damaging nature of the cross-examination to which he had been exposed.

The matter can be approached from first principles as follows. If counsel for Ismunandar was seeking to explore the issue of Chan’s appeal as going to Chan’s credit, which is a possible view of what he was attempting to say in the relevant exchanges, the evidence would only have been admissible if it were to be of “substantial probative value” on credit: s 103(1). Counsel for Ismunandar did not demonstrate either to the trial judge or this Court that it would have substantial probative value. If counsel for Ismunandar was seeking to explore the issue of Chan’s appeal as going to an issue in the case, the question is whether any evidence elicited, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: s 55(1). The facts in issue relating to Ismunandar were facts to do with his knowledge. Similarly, the facts in issue relating to Siregar were facts to do with his knowledge. Chan’s concerns about not having been justly sentenced could not relatively affect the probability of either Ismunandar or Siregar having the necessary knowledge. Further, as the trial judge said in argument, that line of questioning would open up side issues: it would require “a deal of explanation to a jury about the appeal process in this State”. The “passport photo”

The complaint about the trial judge’s rejection of “the tender of the passport photo Chan had in his possession upon landing at the beach” has the following background. Near the end of the cross-examination of Chan by counsel for Ismunandar, the transcript records the following: “Q. You told us Mr Chan that you – in relation to this passport photo that you always carried one is that right? I call for the travel pass. CROWN PROSECUTOR: That’s produced. [COUNSEL]: I tender that. CROWN PROSECUTOR: I presume the witness will identify it your Honour, I don’t object to the tender. Do you want to show it to the witness or are you just tendering it? [COUNSEL]: It can be shown to the witness please. … HIS HONOUR: Could I have a look at it please. What’s the relevance of this? [COUNSEL]: Your Honour Mr Chan says he didn’t have any intention of staying in Australia, he had no knowledge of this alternative passport that was found on the beach in the sand, that the reason why he had the passport photo --- HIS HONOUR: I’m asking what the relevance of this is? [COUNSEL]: Yes your Honour that’s the travel pass I suggest that he --- HIS HONOUR: What’s the relevance of it? [COUNSEL]: It illustrates your Honour that Chan is lying. HIS HONOUR: I reject the tender of it in your case.”

Counsel for Ismunandar submitted that: “It was at least one available inference from the possession of that photo Mr Chan planned to stay in Australia (he having previously had the opportunity at least when in Australia to make the appropriate arrangements) to assist in distributing the heroin and he was being untruthful when denying this was part of his role. It was also consistent with the fact at least one part of the voyage’s purpose was to smuggle people into Australia. This evidence it is submitted was relevant and should have been admitted. Also makes the proposition more viable he had rather more knowledge of the members of the meeting party than he conceded if he was planning to thereafter remain with the heroin after it landed and also presumably in company with those four men and/or their associates in Australia.”

There is no evidence that the document was a “passport photo”, or that it was an “alternative passport … found on the beach in the sand”. What the trial judge rejected was the tender of a travel pass. According to the Crown, with whom counsel appearing before this Court did not disagree, the document showed only the dates of Chan’s trips to China. Counsel for Ismunandar at the trial did not demonstrate how it showed Chan to be a liar. Counsel for Ismunandar on the appeal did not demonstrate how the travel pass supported an inference either that Chan planned to stay in Australia or that the purpose of the voyage was to smuggle people into Australia or that he had knowledge of members of the “meeting party”. Miscarriage of justice

Even if the trial judge erred in restricting the cross-examination of Chan or in rejecting the travel pass, neither Ismunandar nor Siregar has demonstrated any miscarriage of justice. No cross-examination of them, and no proof that he was a liar, could have damaged his credibility more than the four defence counsel and Crown counsel did between them as it was. So far as questioning about Chan’s appeal in particular is concerned, counsel for Ismunandar leapfrogged the evidentiary gap of which Ismunandar now complains by submitting in final address: “I wonder how his appeal is going to go, the audacity for Chan to appeal after his massive discount.”

The grounds of appeal just discussed are without validity. Ismunandar Ground 3 and Siregar Ground 3: the directions on Chan’s evidence The grounds of appeal

Ground 3 was: “His Honour erred in failing to appropriately direct the jury in respect to the accomplice Chan’s evidence in accordance with s 165 Evidence Act, 1995 as it applied in the case against the Appellant.”

It is convenient also to consider Ground 3 of Siregar’s Further Amended Grounds of Appeal: “His Honour erred by failing to give a proper and/or adequate direction regarding how the jury should approach the evidence given by Chan.” The summing up

The part of the summing up complained of was: “I now wish to make some remarks and give you some directions of law in regard to Chan’s evidence. Experience has shown that it is dangerous to convict on the evidence of an accomplice alone. Accomplices to a crime have much to gain and little to lose in giving evidence for the Crown. Fear of consequences, remorse, revenge, blame shifting and spite might provide motive enough for an accomplice to give evidence against a fellow criminal. He may have committed himself to a version of events which he cannot now change. Further encouragement might come from an offer of a shorter sentence or the ignoring of other crime. The problem which jurors have with such evidence of people who are criminally concerned is that you never know where the true motivation might be and it may never be revealed to you. What then is a person who is criminally concerned, or an accomplice? He is in fact an accessory before the fact or a principal or an accessory after the fact. That is, he is a person who helps in the preparation of the crime or commits a crime or assists a criminal to escape liability. There seems to be absolutely no doubt that Mr Chan falls firmly into that category. It is of course a matter for you [to] determine but once you form that view, it is dangerous to convict on that evidence alone. Corroboration or evidence from outside Chan’s evidence should be considered to see if support can be obtained for the account which he has given. There is evidence in this case which is capable of corroborating or supporting Chan’s account of events. For instance, what he says about the arrest on the beach is confirmed by that strange video that you have seen and the evidence of Zuccato. The arrest of the Uniana is evidence which has been put before you. The secret compartment or the void space as the Crown refers to it, is to be seen on the video that you have. The lowering of the speedboat, you have pictures of that and of course you have the evidence of two accused in relation to the lowering and retrieving and the lowering yet once again of the speedboat. The voyage from the Malaccas is to be found in the log. Taking on board Chen and the heroin is to be found in Chen’s own evidence. And the launching of the speedboat at Port Macquarie has the support of Chen’s evidence and the evidence of Siregar and Ismunandar. Chan’s reconnoitring journey to Australia may be confirmed in your mind by the entries in the passport and his journey to Cambodia likewise though there is evidence which lies outside Chan’s own evidence which would tend to support certain parts of his account of events. But how should you deal with his evidence, because there are big discrepancies within the evidence itself and at this stage, this is not, strictly speaking, a [direction] of law but just a suggestion to you from me as to how you might deal with Chan’s evidence in your fact finding and fact determining task. You recall that he gave two conflicting accounts of his relations with Lau. Firstly he told police that it was Lau who recruited him and sent him on this reconnaissance journey to Australia. Subsequently, in statements which he made some months later, he says that he recruited Lau and Lau was no more than a virtually accidental participant in the enterprise. You can, if you wish, accept either of those or neither of them, that is a matter entirely for you. But in examining those two you could look to the surrounding circumstances, that is, that the first record of interview of Chan was taken probably about an hour and twenty minutes after his arrest. The second two statements were taken much later, after he has spent some short period of time with Lau as cell mate in the prison where they were housed. And there is of course a third statement which came to light after cross-examination in other proceedings. So you can look to the surrounding circumstances to see how the statements came into being. Secondly, you could look to see whether you accept one account or the other when you compare it with your own experience of life. For instance, in the second account Lau is unemployed and needs a job. When you look to other evidence like the accounts not precisely at this time but in the months before and a little time afterwards, 18.4 million dollars has gone through his account and his employment is without wages and without a particular time limitation or without any perhaps, real purpose. Then you can look to the lies which Chan has told which the Crown has itemised, if you accept that they are lies. And you can look at the demeanour of Chan when he was cross-examined about these matters. What you would be doing in that case is to say as you inspect his evidence, I would accept that of him because it is confirmed by other pieces of evidence. I would not accept that because it either offends my sense of how things actually work in the real world or in the alternative, because there is no corroboration for that particular piece of evidence. When you do that, you can separate out as it were, those matters of Chan’s evidence that you would accept and those which you would reject. I just wanted you to move away from any thought that you would just choose one account or the other or neither on some impressionistic feel. I think you can analyse what he has said to you and accept parts and reject other parts or of course you can, if you wish, reject the whole lot of it. That I might say is not specifically a direction of law, it is just my suggestion to you as to how you deal with the difficult question of Chan’s evidence.” The submissions on behalf of Ismunandar

Counsel for Ismunandar submitted that: “His Honour does not detail the Crown case against the appellant on the issue of knowledge critically relied upon Chan’s evidence to the effect he must have been aware of the repackaging of the heroin on the night Chen is picked up because of the light which was used, the open hatch cover and the appellant’s position on the bridge (the appellant denied in evidence he saw a light and significantly that the hatch cover was open); and that contrary to prior inconsistent statements by Chan the version given by him at trial meant at least the Captain and/or one or more of the Indonesian crew must have been involved in the storage of the sports bag in the secret compartment – thus permitting the inference the appellant as first officer and on watch would have been aware of this activity. For it is submitted it was these matters with the findings of like bags in the appellant’s cabin which, if there was any proper basis for a finding beyond reasonable doubt of his knowledge, actually constituted the crucial considerations.”

Counsel for Ismunandar also submitted that the jury should have been told that in evaluating Chan’s evidence, he was minimising his own role, particularly bearing in mind the outstanding appeal, and minimising the roles of the Chinese members of his group (including the four Chinese men on Grant’s Beach) at the expense of the Indonesian crew. (So far as these submissions, and the corresponding submissions on behalf of Siregar, repeat the complaints dealt with above about the supposed restrictions placed by the trial judge on counsel for Ismunandar’s cross-examination of Chan, they are rejected for the reasons already given.)

Finally, counsel for Ismunandar submitted that the accomplice warning was tailored more to the position of Lau than to that of Ismunandar. The submissions on behalf of Siregar

Counsel for Siregar submitted that Chan was “not only inherently unreliable but manifestly unreliable”. If this is really true, that circumstance obviated any need for an unreliability direction of any kind. However, the submission continued: “It is submitted that his Honour’s summing up required strong and careful directions including directions on the following matters: (a) Generally the dangers of accomplice evidence. (b) The potential dangers in this case because of the terms of Chan’s sentence and his undertaking to the Crown in respect of his evidence. (c) The possibility of an appeal by the Crown in relation to sentence and Chan’s perception that his evidence may need to be tailored to meet that consideration. (d) Chan’s minimisation of his own role and the lies which he told in that respect. (e) Chan’s protection of other persons involved in the Chinese organisation including Fei Lo Nam, the Hong Kong Chinese at Grant’s Beach, Fei Chi, Poon and Frankie. (f) Chan’s involvement in the elaborate preparations for this drug smuggling venture. (g) The lies which Chan told to various courts in these and related proceedings. (h) The lies told by Chan to the police. (i) Chan’s attempts to inculpate Siregar including: (i) different and contradictory versions concerning Siregar coming in to the hold area when the bags had been brought on board the Uniana; (ii) his lies concerning Frankie; (iii) his lies concerning his role in the work on the derrick which were only exposed under cross examination in court in earlier proceedings; (iv) generally the dissembling of Chan in relation to the Uniana in respect of the welding of the derrick; (v) the real likelihood that Chan was lying in respect of his Malaysian and Cambodian trip; (vi) his belated attempt to inculpate Siregar by saying that he would have taken Siregar with him to Australia; (vii) Chan’s reluctance to give details of the Hong Kong Chinese in Australia and their involvement in the importation; (viii) Chan’s reluctant to give evidence against the Hong Kong Chinese; (ix) Chan’s lies concerning the GPS evidence which he gave concerning his previous trip to Australia and the involvement of Fei Chai; (x) the exculpatory lies which he gave to the Court concerning his knowledge of the drugs and his evidence that he was going to flee once he discovered there were drugs on board – as compared and contrasted with his plea of guilty to being knowingly concerned in the importation; (xi) the dangers of Chan’s evidence in light of the clear financial arrangements made for the journey by the Chinese and the financial rewards which would have flowed to the Chinese as compared to proof of no financial advantage to the Indonesian crew, including Siregar, other than their normal wages and a small bonus for a slightly longer journey; (xii) a general direction concerning lies told by Chan; (xiii) a further direction of the danger in accepting Chan where both the Crown and the defence submit to the jury that [in] various respects Chan is not a witness of truth.”

In oral argument the summing up was described by counsel for Siregar as “unfair and woefully inadequate”, because the role of Chan meant that the case was “drizzled with danger”. Counsel complained that the trial judge did not take the jury through the detailed cross-examination of Chan on inconsistencies in his evidence on the issue of the derrick and of Siregar looking into the hold and indeed “completely ignored” it. He said that the only function of the trial judge’s discussion of Chan’s lies and inconsistencies was to permit the jury to infer the strength of parts of the Crown case, and that the jury were not told how they could use Chan’s lies and inconsistencies to discredit the parts of the Crown case which told against the accused.

Counsel for Siregar relied on various authorities. In particular he drew attention to R v Checconi (1988) 34 A Crim R 160 at 173, where it was said that the defences in that case could not be adequately put “without some analysis, or at least summary, of the grounds” of the defence attacks on an accomplice. In R v Schmahl [1965] VR 745 an appeal succeeded because of a failure by the trial judge in that case to relate the general principles as to the use of prior inconsistent statements to the factual issues in the case, “where an important part of the defence was derived from inconsistencies in the Crown case, and where so much depended on the reliability of the witness” who made the inconsistent statements. Events during and after the summing up

The trial judge began summing up on 16 November 2000. At the next adjournment counsel for Ismunandar raised a problem with the trial judge’s directions on circumstantial evidence. The trial judge indicated that he would deal with submissions at the end of the summing up.

The summing up continued in the afternoon of 16 November 2000 and the morning of 17 November 2000. When the summing up ended, counsel for Lau asked for the whole summing up to be withdrawn and for the jury to be discharged. Counsel for Siregar made the same application and then made a brief submission about a matter other than the accomplice direction. Counsel for Ismunandar applied for the whole summing up to be withdrawn and for the jury to be discharged. In the event that that application failed, he made a number of specific requests for redirections, including the one foreshadowed the day before about circumstantial evidence. He did not ask for a redirection about Chan’s evidence. Rule 4 thus applies in relation to both Ismunandar and Siregar.

Counsel for Ismunandar characterised his complaint as turning on a failure to give a proper direction under s 165 of the Evidence Act . That direction need not be given unless a party applies for it to be given: s 165(2). Counsel for Ismunandar at the trial did not argue that it be given. Further rule 4 problems thus arise. The failure of counsel for Ismunandar to ask for a s 165 direction before the summing up, and the failure of him and all other counsel to ask for any improvement in what the trial judge said after the summing up, can, in view of the importance which Chan’s evidence had in the trial, only be accounted for by a collective belief either that the dangers were, after sections of examination in chief by the Crown counsel, sections of s 38 examination by the Crown, and four cross-examinations by the accused, so obvious that no warning was needed or that the warning which was given was satisfactory. Each defence counsel strongly attacked Chan’s reliability in cross-examination. The collective experience of defence counsel was considerable. The position is highlighted by the posture of counsel for Ismunandar at the trial. Generally speaking the other counsel took the approach that the summing up should be withdrawn and the jury discharged, but, apart from one direction about circumstantial evidence, they did not seek particular redirections. Counsel for Ismunandar sought a discharge, but in the alternative made eight applications for specific redirections on particular matters, in a manner casting credit on his technical ability because of their precision. He thereby revealed the operation of a judgment which was much more sound than any this Court would be likely to make without assistance as to alleged errors which he perceived to be troublesome from his client’s point of view and those which he did not. For those reasons leave under rule 4 would ordinarily be refused. The arguments considered at a general level

In order to see whether there was a miscarriage of justice it is convenient to consider whether, assuming a s 165 application had been made, s 165 was complied with.

If the summing up is viewed from the point of view of s 165(2), it cannot be said that the trial judge failed to warn the jury that Chan’s evidence may be unreliable, failed to inform the jury of matters that might cause it to be unreliable, and failed to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. He warned about the general unreliability of accomplices and the particular unreliability of Chan. The discrepancies, conflicts and possible lies in his evidence were referred to. The trial judge warned about the reason for Chan’s possible unreliability, particularly the desire to reduce the evil consequences of a long sentence. He warned of the need for caution because of the danger of convicting on uncorroborated evidence. The grounds of appeal under consideration are similar to Ground 4(a) advanced by Chen and Ground 6(a) advanced by Lau. What was said about them earlier has some application here too.

If the direction is measured against the requirements of a corroboration warning at common law, it is not defective. So far as the appellants complain about an excessive emphasis on material favouring the Crown case, it must be remembered that in a case such as this, where there was evidence, indeed much evidence, capable of amounting to corroboration, a corroboration warning traditionally contains examples of what could constitute corroboration.

The precise direction which, according to counsel for Siregar on the appeal, should have been given by the trial judge at the trial even though it was not asked for before or after the summing up, was: “firstly, Chan may have a reason to lie, that is, in respect of his sentence, that he was still subject to the undertaking and there may have been in his mind a view that he was required to adhere to the undertaking regardless of the evidence, that there were other ways in which he may be unreliable. He may seek to minimise his role and maximise the role of others, that his evidence may have been tailored to minimise the role of others within the Chinese organisation, that he may have sought to protect other persons in the Chinese organisation, and we named those. Four Hong Kong Chinese here on the beach waiting, the person known as Fat Boy, who came to Australia, who Mr Chan met. Mr Chan declined to give the names, he gave nicknames, declined the names of certainly the vast majority of the Chinese persons involved in this enterprise. He may have – and we say he did – minimise his own role in what were elaborate preparations, and, in particular, the trial judge should have warned the jury very firmly about the issue of lies, lies and inconsistent statements which the witness Chan gave. The trial judge referred to Chan and lies and prior statements, but virtually always in the context of the Crown’s cross-examination of him by leave, and putting to the jury, in essence, the Crown says this much is the truth – in chief – and then turns and says, we have cross-examined him on this aspect on the basis of prior inconsistent statement and you would now accept this is the position and not accept certain things Chan says.” In our opinion those general criticisms are not made out. Indeed the submission evolved into a different complaint: that Siregar’s case in relation to these matters should have been dealt with in great detail. The limited role of Chan

If Chan had never given evidence, it is no doubt true that the position of each appellant would have been much improved, particularly if none of the three appellants who in fact gave evidence had entered the witness box. The effect of Chan giving evidence was to cause three of the appellants to decide to enter the witness box with a view to them seeking to establish a defence case based on want of knowledge. After each of them entered the witness box, Ismunandar and Siregar both made admissions confirming parts of Chan’s testimony against them (for example, Siregar’s participation in the modification of the derrick in Hong Kong, their presence on the Uniana when she left Hong Kong, the fact that, contrary to the log, the vessel sailed to the Andaman Sea and what happened in the Andaman Sea). Chan’s evidence was of very limited utility in proving knowledge on the part of Ismunandar and Siregar; its primary utility for that purpose was simply that it compelled admissions of objective facts from which knowledge could be inferred. If Chan had not given evidence, it is likely that Ismunandar and Siregar would not have entered the witness box and therefore would not have made the admissions.

The point is that by the close of the defence cases advanced by these two appellants, as distinct from the position at the start of the Crown cases, Chan was a witness of somewhat limited significance. The complaints about the trial judge’s directions about his status as an unreliable accomplice are in truth very exaggerated and tend to lead into error in the light of that fact. Counsel for each of these two appellants adopted the device, favoured by advocates for centuries, of seeking to move the debate onto favourable ground of their own choosing. They invited this Court to reason: Chan was the main Crown witness; Chan was unreliable; the trial judge said little about Chan in relation to their specific defences; therefore the trial judge’s summing up was completely flawed. Among other weaknesses in the argument, the primary weakness is that Chan had no role to play in relation to Ismunandar, and only a small role to play in relation to Siregar. Chan’s relationship to Ismunandar

So far as Ismunandar was concerned, by the time he had finished testifying the evidence of Chan was important in only one respect. Chan had said that he repacked the heroin below decks after it was collected in the Andaman Sea. The transcript records the following part of Ismunandar’s cross-examination by the Crown: “Q. You took your ordinary watch from 4am to 8am after the speedboat and the heavy sacks came on board in the Andaman Sea didn’t you? A. No. Q. You were in the wheelhouse during that time weren’t you? A. Yes. Q. And you knew that there were people working under the hatch covers in the cargo hold isn’t that right? A. I didn’t know. Q. You could see I suggest to you light being emitted through an open hatch cover during the entire course of your watch from 4 at least until dawn, do you agree with that? A. During my watch there was no – any light at all except the navigation lights. Q. It was very dark when you came on watch at 4am, do you agree with that? A. That’s right. Q. May I ask you if you can recall is it still very dark at 5am, an hour into your morning watch? A. Yes it was still dark. Q. And when does the first light of dawn show in the hour between 5 and 6am if at all during that time? A. At that time the Andaman Sea if I’m not wrong we could see the sunshine around 7am. Q. So for three of the four hours of your morning watch it is very dark, do you accept that? A. Yes. Q. When you were in the wheel house during that three hours of your for hour watch, you were looking out the wheel house windows in front of you were you not, at least from time to time? A. Yeah. Q. Will you have a look please at photograph number 17, part of Exhibit F, it will be book one. Do you see that? A. Yes. Q. When you were on watch during 4.00am to 8.00am the night after the Andaman Sea, the tarpaulin was not roped over the hatches as shown in photograph 17 was it? A. After we have put back the speed boat and after we replaced the hatch cover I also put back all of the tarpaulin and also I tied up the rope exactly like this. Q. I suggest to you Mr Ismunandar that that is not true, what do you say about that? I suggest to you that the second -- HIS HONOUR: He hasn’t answered that question. Q. I suggest to you that’s not true, what do you say? A. No I did it exactly like this. Q. I suggest to you that the hatch cover second from the wheel house was ajar, that is, not firmly in its position and that you could see light coming from that beneath the deck? A. No, after I replaced them I covered all of them back again.”

Chan did not say he saw Ismunandar or indeed that he had anything other than the briefest contacts with him during the period from 15 August 1998 to 14 October 1998. They spoke no common language. In all the circumstances Chan’s role as a factor in Ismunandar’s conviction was, by the end of the evidence, minimal. Any deficiency in the trial judge’s direction about Chan can have no impact on the validity of Ismunandar’s conviction. By the end of the trial it was beyond question that the Uniana had carried heroin into Australian waters; that it had got that heroin in the Andaman Sea in rice bags; and that it had been repacked at one stage. There was much evidence from which an inference could be drawn that Ismunandar had knowledge sufficient to make him guilty of the offence charged. The only relevant question as to Ismunandar’s knowledge on which Chan could have cast any light was whether Ismunandar was on notice of the repacking. That turned on the credibility of Ismunandar’s evidence in the above passage, not the credibility of Chan. Accordingly the submission quoted above in [181] is totally beside the point. Chan’s relationship to Siregar

So far as Siregar is concerned, by the end of the case Chan’s evidence was important in only two ways. The first concerned Chan’s evidence of Siregar’s involvement in the lengthening of the derrick in Hong Kong. The second was Chan’s evidence that Siregar entered the cargo hold while Chan and Chen were repacking the heroin from the rice bags into the sports bags. Chan’s relationship to Siregar: the derrick

Chan’s evidence in chief about lengthening the derrick was as follows: “Q. After that did you speak with a person about the derrick? A. Yes. Q. Do you know the name of that person? A. Yes. Q. What is his name? A. Siregar. Q. What did you say to Mr Siregar? A. That the boss asked us to come to lengthen the derrick. Q. What, if anything, did he say to you? A. Yes but I don’t remember. … Q. Are you able to recall anything that Mr Siregar said to you after you spoke to him, just yes or no for the moment please? A. He did say something but I forget. Q. Do you remember where you were when you spoke with Mr Siregar at this time? A. On deck near the derrick. Q. Did you say anything else to Mr Siregar after he spoke words to you that you are unable to recall? A. Basically it’s about the oxygen, whether there would be enough oxygen to do the welding. Q. Do you recall if Mr Siregar said anything to you as you spoke about oxygen and welding and these matters? A. I recall that he said there was not enough on board the ship. Q. When he told you that what did you do? A. So I told the two other men the welding workers – sorry, so I asked the two welding worker[s] to bring with them oxygen. Q. Let me just understand this, the two welding workers that you speak of were they already on the Uniana when you arrived or did they travel to the Uniana with you? A. They came with me. Q. Was any welding work able to be done on board the Uniana that day? A. I recall that only work that cutting work was done that day. Q. That is some cutting work on the derrick arm is that what you mean to say? A. Yes. Q. Were you present when that cutting work was done? A. Yes. Q. Were the two welders that you travelled to the Uniana with involved in that cutting process? A. Yes. Q. Was anybody else present when those men were doing that job? A. Yes. Q. Who was that? A. Siregar. Q. What, if anything, did you see Mr Siregar doing when he was with the two welding men? A. To assist those two men. Q. What was he actually doing, can you describe his actions please? A. I recalled him to assist those two men in cutting the derrick.”

Later his evidence was: “Q. Mr Chan earlier this year you provided to police a further statement about your involvement with the Uniana and the importation of heroin. Do you remember that? A. Yes. Q. That was, I want you to accept from me, on 9 February this year. Do you accept that? A. Yes. Q. Do you recall in that statement to police saying that you and another worker returned to the Uniana the day after the derrick had been attended to, bringing with you welding equipment? A. Yes. Q. Do you also recall telling the police in that statement that Mr Siregar helped you to fix the derrick as he was the chief engineer. That’s what you told the police? A. Yes. Q. What did he do in helping you to fix the derrick? A. He pointed out the spot for cutting. Q. Mr Chan on 9 February this year you told police that you first visited the Uniana, spoke to Mr Siregar and then made measurements of the derrick. Do you remember saying that? A. Yes. Q. You then told the police that you left the Uniana and went back to Hong Kong. Do you remember saying that? A. Yes. … Q. You told police that the following morning, the next day you returned to the Uniana with welding equipment. Do you remember saying that? A. Yes I recalled that I told the police. Q. Was that the truth? A. I mixed up the date. Q. How many times did you go to the Uniana and deal with the derrick in some way before travelling on the Uniana out of Hong Kong? A. It was one day. Measurement was done and bring along some welders to do some preparation work. Q. How many times did you visit the Uniana and do something with the derrick, whether to measure it, cut it or weld it? A. I recalled it was two times on that day, the first day. Q. You told police on 9 February this year that it was not twice in one day but two separate days. Do you agree with that? A. Afterwards I thought about it I made a mistake in my recollection.”

The Crown submitted, and counsel for Ismunandar did not deny, that this evidence in chief was not challenged in cross-examination. That appears to be strictly correct. In cross-examination counsel for Siregar asked the following questions: “Q. You came onto the Uniana with some welders, didn’t you? A. Yes. Q. Two welders? A. Yes. Q. Some work done on the derrick by the welders? A. Yes. Q. Mr Siregar was asked whether the oxygen from the ship could be used and he said no. A. I think it was me who asked Siregar how much oxygen was left. Q. You were told that you couldn’t have the oxygen from the ship? A. The answer was the oxygen in the ship was not much. Q. You and your welders brought, at some stage, did you not, your own oxygen equipment? A. Yes.”

Later the following is recorded: “Q. You see the very first time that you said that you went onto the Uniana on or about 10 August with the welders, the very first time that you spoke of that was when you were cross-examined in February of this year, is that right? A. Yes. Q. You made a record of interview in October 1998 and said nothing about going onto the welders, did you? A. Yes. Q. You made a statement on 9 March 1999 and said nothing about the welders? A. Yes. Q. You made a statement on 1 April 1999 and said nothing about the welders? A. Yes. Q. And you made a statement on 10 December 1999 and said nothing about the welders? A. December ’99? Q. Yes, I think the statement is 10 December 1999? A. It should be this year, yes. Q. I will come to this year. The statement on 10 December 1999 you said nothing about the welders, did you? A. Yes. Q. And nowhere else, committal proceedings, anywhere else, you said nothing about the welders, did you? A. Yes. Q. It was only after you were shown that you weren’t in China on 14 August as you claimed that you made a statement about the welders, including the welders? A. I think that’s not so. From my recollection one of the barrister[s] mentioned something about 14 October 1998 that Frankie was my friend, something like that, and that made me recall those things. Q. That’s right, the first time you mentioned coming on board the Uniana with these welders you left it until February of this year, didn’t you? A. Yes. Q. When you finally made a statement about this you said that you came onto the Uniana and there were a number of people on the ship, quite a few people, and it was in that statement that you mentioned the welding, wasn’t it? A. Yes. Q. And you told this Court initially that you only went onto the Uniana in relation to the welding on one day, didn’t you? A. Yes. Q. And you were cross-examined, if I am not mistaken, by the learned Crown, in relation to that, correct? A. Yes. Q. Because in the statement that you made which included this matter of the welding you said that you went onto the Uniana twice in relation to the welding, didn’t you? A. Yes. Q. And you now say, do you, that you only went once? A. The truth of the matter is regarding that period of time any details regarding that period of time is very vague to me, I can’t remember them. Q. What do you say now, Mr Chan, what do you say now, did you go on the Uniana in relation to the welding on one day or did you do it twice, in two days? A. One day. Q. But that’s not what you told the police when you made this statement, is it? A I remembered wrongly.”

Later still the following appears: “Q. Mr Chan, I want to take you to some of the evidence you have given on one topic here, and just in case I haven’t made it clear, Mr Chan, I suggest to you on the 10th and the 11th welding work, whenever it was done, was done by you and the people you brought on board to do the welding? A. What welding work? Q. Yes? A. What sort of welding work? Q. Whatever welding work it is that you say you did you did with – the work was done by you and those two workers? A. I brought two persons to extend the derrick. Q. And it was you and those two people who did welding work on the Uniana, that right? Is that right, sorry? A. In relation to the derrick, yes.”

The cross-examination questioned whether there were visits on two days or one, and later whether Chan was accompanied by two persons or one. But it did not specifically challenge his evidence that Siregar assisted the men in cutting the derrick. And in leading questions the cross-examination elicited evidence that Siregar forbad the use of oxygen for welding work on the derrick.

Siregar in chief said he did not see work done on the derrick or do it personally. But in cross-examination he admitted that the work was done and that he answered inquiries from Chan about welding the derrick. An inference can be drawn from Siregar’s qualified acceptance in cross-examination of part of Chan’s evidence in chief and the failure of his counsel to cross-examine Chan specifically about the matter that the reliability of Chan’s evidence about Siregar being involved with the repair of the derrick was not seriously in issue.

Indeed, it appears from that transcript in explicit terms that it was common ground between Chan and Siregar that they had a conversation about the use of oxygen for welding work on the derrick which by itself was capable of supporting an inference about Siregar’s knowledge, taken with other material going to his knowledge of the purpose of the journey. Chan’s relationship to Siregar: the hold

Chan’s evidence about the cargo hold was recorded in the transcript thus: “Q. Just one question Mr Chan before I move through the rest of the next day, whilst you and Man Chai, Mr Chen, were in the cargo hold repacking the blocks, did anybody come down to the compartment to the cargo hold at any time? A. No-one came down. Q. Are you sure about that? Please think carefully. A. Someone looked down from above, but no-one came down. CROWN PROSECUTOR: Your Honour, the Crown makes a further application under section 38 of the Evidence Act and I alert your Honour and my learned friends to page 41. The statement of 19 March 1999. Second paragraph. HIS HONOUR: … [Have you got any objection to that evidence being led? It’s the second paragraph on that page. [COUNSEL FOR SIREGAR]: Oh well your Honour, if she wants to get another version. HIS HONOUR: I take that as being no objection? CROWN PROSECUTOR: Yes, I take it as no objection. HIS HONOUR: Very well, I give you leave under section 38(1)(c). CROWN PROSECUTOR: Q. Mr Chan do you remember telling police in March of last year when you gave your long statement, that’s some months after your arrest. Then on one occasion during the six to seven hours of packing Siregar came down to the compartment to have a look at the engine. Do you remember telling the policemen that? A. He didn’t come to the front. Q. I didn’t ask you that Mr Chan. Please listen to my question carefully. Do you recall telling the policemen that Mr Siregar came down to the compartment to have a look at the engine? A. I recall I said that. Q. Where in the process of the six or seven hours that you were working did he come down to the compartment and you might say the first two hours, the second hours, the third two hours or toward the very end. Can you help please? A. I didn’t pay attention to the time, but I think it should be in the middle.”

Examination in chief then resumed as follows: “Q. Mr Chan, will you have a look at photograph 29 please, part 1 of Exhibit F. Are you able to say whether when you climbed in and out of the cargo hold the night that you were working there with Mr Chen whether you climbed in and out on the right hand side of the cargo hold as it’s shown in this photograph where the metal runs out or the left hand side as shown in this photograph? A. He’s got to climb inside the speedboat and go towards the end. Q. I understand. How do you get into the speedboat? Do you climb down the metal internal ladder or some other way? A. Through that hatch hole coming down towards the end of the speedboat, walking towards the front and then down to that metal thing towards the front. HIS HONOUR: He is pointing to something in the picture. Would you turn around and hold up the picture for me. Q. What are you pointing to? A. From the back to go down and so from the end of the speedboat walk towards the front and then climb down to this metal thing. HIS HONOUR: He is actually saying that he used the speedboat as a form of ladder. CROWN PROSECUTOR: I understand that your Honour. HIS HONOUR: That is that he came down on to the aft end of the speedboat, walked around it and got down from there. CROWN PROSECUTOR: Q. When Mr Siregar came down to the cargo hold did you see how he entered that area? A. At that time I was in the speedboat, I was inspecting and fiddling with the engine, he climbed down and looked at the engine with me, together. Q. Will you answer my question please. Did you see how Mr Siregar climbed into the cargo hold? A. When I was at the back of the speedboat I saw him climb down through the hatch into the speedboat. Q. Where were you when he climbed down through the hatch into the speedboat? A. I was in the speedboat. Q. What were you doing in the speedboat? A. At that time the other people were sorting things so I went to look at the engine and see how they were wrecked. Q. What other people were sorting things? A. Man Chai. Q. Anyone else there Mr Chan? A. That’s all, just Man Chai picking up things. … Q. Where were you when you saw Mr Siregar climb down into the cargo hold? A. At the back of the speedboat. Q. What were you doing there? A. Because the engine was wrecked very badly. Q. Yes? A. So I was using a torch to assist inspecting the engine? Q Where was Man Chai? A. In the front of the compartment? Q. Was there anybody with Man Chai, assisting him, at the front of the speedboat? A. No. Q. Do I understand you to say that half way through the six to seven hours of unpacking you left Man Chai and took a torch to the speedboat motor to look at it? A. Yes. Q. And do I understand you to say that it was coincidentally that at that time that Mr Siregar joined you to look at the speedboat? A. No he stuck his head from the hatch looking down and so I asked him to come down to assist looking at the engine. Q. What did you and Mr Siregar do when looking at the engine? A. That the engine was all wrecked and I think what you call the losso (as said) was all twisted and so he shook his head and went back up. Q. Was it still dark at this time? A. I think so. Q. Was the area where Man Chai was working still illuminated by artificial light? A. Yes.”

In cross-examination by Siregar’s counsel Chan adhered to his evidence that Siregar had come down into the hold. The cross-examination appeared to be directed to shaking that evidence rather than shaking the evidence that someone had looked down. Thus this evidence was given: “Q. In relation to that you were asked this by the learned Crown Prosecutor. ‘Just one question Mr Chan before I move through the rest of the next stage. While you and Man Chai, Mr Chen, were in the cargo hold repacking the blocks, did anybody come down to the compartment to the cargo hold at any time’. Remember that question? A. Yes. Q Your answer was ‘No-one came down’, correct? A. Yes that’s what I said then. Q. Then you were asked ‘Are you sure about that, please think carefully, you said [someone] looked down from above, no-one came down’? A. I said that then. Q. And that’s the fact isn’t it Mr Chan? A. I recall that while working I asked Siregar to come down to look at the engine.”

That is, the cross-examination was seeking to establish the fact that someone looked down but that no-one in fact came down. That impression is reinforced by the following passage on the next sitting day: “Q. Mr Chan do you remember being asked some questions about this in the committal proceedings before the learned magistrate. I suggest to you Mr Chan that in those proceedings you were asked a number of questions about the process of moving blocks into bags in the hold. Do you remember being asked some questions about that? A. When was it? Q. This is in December of last year Mr Chan. A. Roughly yes. Q. And you were asked this I suggest firstly: ‘Q. And when you went down into the hold and walked forward to see the blocks, there was no Indonesian crewmen in there. Correct? A. No. Q. That’s correct is it? A. Sure’. INTERPRETER: Excuse me. [COUNSEL]: Sorry I’ll take it in stages. ‘Q. And when you went down into the hold and walked forward to see the blocks, there was no Indonesian crewmen in there. Correct? A. No.’ A. When I went down there, there was no Indonesian crewman. Q. That’s the question [you] were asked and that’s the answer you gave right? A. Yes. Q. And then you were asked: ‘Q. That’s correct is it? A. Sure.’ A. Yes. Q. You were then asked further questions about moving the blocks and putting them in bags, and then you were asked this question: ‘Q. And whilst that was happening there were no Indonesian crewman in the hold. Correct? A. No.’ A. From the position where we were there was no Indonesian crewman. Q. Mr Chan is that the question that you were asked in front of the magistrate and is that the answer you gave? A. Yes. Q. Your attention was again brought to this subject in March of this year proceedings was it not Mr Chan. Do you remember being asked questions about this in the proceedings on 3 February of this year? A. Yes. Q. And I suggest Mr Chan that you were asked a number of questions by the Crown Prosecutor on this subject. Do you recall being asked questions on that? A. Yes. Q. And in those proceedings you described the process of removing blocks from bags and putting them into other bags. Do you remember giving some evidence about that process? A. Yes. Q. You were asked this question: ‘Q. Did any crew member enter the storage place where you were working with Man Chai during that period of hours? A. No one came.” That is the question you were asked and that is the answer you gave? A. Yes.”

The cross-examination then moved to another subject. Again the concern appeared to be whether any Indonesian crewman was in, or entered, the hold while the blocks were moved.

When Siregar gave evidence in chief, he was not asked about the incident in the hold. The Crown cross-examined him about it, but he denied it, though he did agree both that the speedboat engine had been damaged and that it was part of his responsibility as chief officer.

The parts of the Crown’s address directly touching upon this incident appear in the middle of the following passage: “Mr Siregar … was a member of the crew that manned the Uniana on her journey from Taiwan to Hong Kong where she anchored and waited for a number of days until the derrick was done and the crew came on board. He is the only crew member of the original crew who remains on board. Ladies and gentlemen the Crown submits to you that he does not remain on board because of some putative illness on the part of the chief engineer on the On Shun and he was roped in because of illness, the Crown asks you to infer from all of the circumstances that the organisers of this importation employed Mr Siregar well in advance of the importation in order for two very important things to happen. One, in order that he would be the person involved in supervising the refurbishment and repair of the vessel that was of course about to embark not only on a long sea voyage but a sea voyage where it was never intended that the vessel would draw into port, so the engines had to be first class, the engine room in its function had to be absolutely first class and of course there are those important additions to this vessel that set it apart, the sea valve and the extended derrick. The organisers in my submission to you of this importation employed Mr Siregar and retained his services for the voyage to ensure that the man who’d got the engines up to top class who knew the operating detail of the mechanical and electrical equipment would be there ready and on call should anything happen because ladies and gentlemen the last thing that these organisers wanted to happen was for the vessel to be stranded at sea with a broken valve or something. She certainly could not draw to port after the Andaman Sea could she. Mr Siregar admitted under cross-examination his involvement in repairing and preparing the Uniana but asserts he had no knowledge why that was being asked of him. He had no knowledge of what journey was planned, he had no knowledge of what time frame it was expected the vessel would be at sea, he had no knowledge of where the vessel was going. Just how ladies and gentlemen you might ask yourselves could this chief engineer discharge his responsibilities as chief engineer and ensure that there was sufficient fuel on board if he doesn’t know where it’s going, he doesn’t know how long it’s to be at sea. It’s fundamental. He had of course to encounter another problem with the checking of the fuel supplies. He had to be down under deck sounding the fuel tanks and ladies and gentlemen either completely oblivious or utterly without curiosity or concern he too doesn’t lift the cover up on its edge and have a look underneath or does he or is it rather that he really didn’t need to. Wasn’t it Mr Siregar ladies and gentlemen you might think who supervised the installation of the sea valve so recently installed and evidenced by the slag on the flange at the bottom of the valve. His attempts ladies and gentlemen to avoid knowing it was there or admitting it and indeed to deny ever seeing it were in my submission to you putting it bluntly utterly unacceptable, indeed utterly incredible. He did acknowledge that part of his responsibilities as chief engineer were to ensure the proper functioning of all of the machinery, including the speedboat engine. He could hardly deny that in the circumstances, given that that’s his own explanation for being on the speedboat on 14 October. He accepts that he was called to check the functioning of the engine, indeed was responsible, if not solely, certainly in company with orders for those test runs around Indonesia. But he absolutely denied ducking his head under the cargo deck that night that Chan and Chen on the Crown case were up the other end of the cargo hull doing their business with the blocks. Absolutely denies that. Maybe [counsel for Siregar] will submit to you that Mr Chan is lying about that. Well look Mr Chan on the Crown case is lying about a lot of things, but if he was going to drop Mr Siregar into it, he was going to put him in the pot, he didn’t have to be so circular about it did he. Didn’t have to beat around the bush, didn’t have to have him just ducking his head in, he could have said come in have a look. That part of Mr Chan’s evidence in my submission to you given Siregar’s responsibilities for checking the speedboat and maintaining its function is acceptable and you will reject Mr Siregar’s denials to that effect and you will reject them on all the evidence in the Crown case. Mr Siregar can hardly admit it for obvious reasons. Mr Siregar he could hardly do otherwise knowing that the speedboat was on board the Uniana for the simple reason he must have been there when it was brought on board in Hong Kong. It didn’t drop from the sky, but when pressed under cross-examination as to what he thought the speedboat was going to be used for couldn’t account for it except that it was most unusual but apparently he doesn’t ask anybody. Now is that acceptable. Do you think that it is reasonably plausible that the chief engineer would not ask. Do you think it reasonably plausible that the chief engineer would not know where the vessel was going when it drew from port. You’ve only to mount these propositions one on top of the other for the castle of cards in the Crown’s submissions to come toppling down around Mr Siregar on the question of knowledge. The engine room log consisted with the false log in the wheel house, no engine room log for that part of the journey where the Uniana is travelling into the Andaman Sea and out. The engine room’s log or the engineer’s log, I think it’s called only kicks in at about 14 September, well clear of the Andaman Sea ladies and gentlemen en route to Singapore. Police officers through Mr Zuccato’s evidence searched that vessel top to bottom as you would expect they would. They’re investigating officers, they were at that time investigating the importation into Australia of a massive amount of heroin, do you accept that it is reasonably possible that they missed the engine log in the engine room. The Crown submits it was not there to be found. Mr Siregar slipped up a couple of times in his evidence and critically, indeed crucially. The first is his slip up in his reference to Singapore. Singapore you will remember was the place where the refuelling was to take place. He said he had no idea at all how much fuel was needed, where the next refuelling was to take place or indeed where the vessel was going. I cross-examined and he, in my submission to you, slipped up and revealed in that process his lack of honest accounting for himself. I was cross-examining him, page 772 about why the other crew left. Question, why did those crew members leave do you know? Answer, the reason was because they hadn’t got their salary yet and they demanded their salary to be paid off. And I suppose you demanded that your salary be paid too did you? Answer, yes I did but the organiser said yes I will deal with you later and you accepted that did you? Answer, no I haven’t got the money yet he only told me that he would fix me up later, that was what I heard from him. And on the strength of his promise to pay you later you decided to stay on board, is that your evidence? Answer, that’s true. Then you were happy enough to leave Hong Kong the following day, the 15 August having no idea where you were going and having no idea how long you would be at sea, is that your evidence? Answer, I wasn’t quite happy actually at that one because I hadn’t got my salary yet. Well did you complain about the fact that you hadn’t been paid and say to the captain, unless I get paid I’m not coming with you? Answer, I didn’t do that kind of action because if I do something like that I might be taken off in Singapore and I would lose my job. You thought the boat was going to Singapore did you? Answer, no. Ladies and gentlemen this chief engineer well knew that there was going to be no drawing to port to take on fuel, there had to be a lot of fuel to get her out of Hong Kong to the Andaman Sea and then for fuel to be taken on in Singapore which would enable the vessel to come clear all the way home. All the way back to wherever she was going to dock after the successful deposit of the heroin in Australia and of course as you know Mr Siregar was utterly unable to deal with Japan, the port of next destination marked on the fuel receipt, signed by him and collected in Singapore. Utterly unable to deal with it, so what does he say when presented with it I didn’t see it. So as not to repeat myself ladies and gentlemen, the captain gets the blame for the Prada bag, this time not that it was given to him but that he was asked to look after the captain’s smokes. He had no idea what heroin was, he had no idea that heroin was a narcotic and he had no idea that narcotics were exported from the very region where this cargo was taken on board. If either – let me just return to Mr Ismunandar for a moment, if either Ismunandar or Siregar to acknowledge that what would swing in immediately for them to deal with is that for them to deal with is that way in which the law understands the notion of knowledge. To remember its either actual knowledge because of what you see with your eyes or what you hear with your ears or what all the circumstances convey to you such that you can say well I know that because of the very real likelihood that it is so. If either of those two men conceded what in my submission to you is a notorious and indeed infamous fact at the turn of the century, namely that narcotics are exported throughout the world from south east Asia they would be stuck having to explain what this stuff was taken on board off the coast of Burma under cover of darkness in the high seas. Finally and it is finally for Mr Siregar, I will have to return to it in Mr Chen’s case but let me invite you now to carefully review if you have the need the thermal imaging video, that piece of footage that doesn’t distinguish man from man as they hopped onto the land at Grant’s each but by reason of the fact that they were all mortal, their bodies or their body shape is shown literally figuratively, because it’s not the Crown case that there is any means of distinguishing Mr Siregar from Mr Chen or either of them from Mr Chan. Ladies and gentlemen, you consider it I’m not going to make too much of this at this stage, you consider it and you will see three bodies moving to and from that boat. And you don’t have to go very far to conclude this much, that both Mr Siregar and when I come to it Mr Chen are hands off those black bags in any circumstances. Nobody or neither of those two people, those two accused, are taking responsibility for carrying those black bags. Why? You pick up the exhibit, it’s heavy. Ladies and gentlemen you don’t have to rely solely upon the thermal imaging, Mr Gordon, Federal Agent Gordon, gave evidence not challenged that he saw three people carrying objects to shore and I think I’m quoting the evidence accurately I hope, that there was more than one journey or at least a repeat journey. Mr Siregar will not acknowledge his involvement even at journey’s end, because ladies and gentlemen Mr Siregar cannot adequately account for his involvement at the commencement of the journey, indeed, for many weeks prior to it. It’s the Crown’s submission to you that you will not find reasonably plausible any part of Mr Siregar’s denial of knowledge and that you will find knowledge proved against him beyond reasonable doubt.”

Putting on one side the hold incident, in our opinion the Crown address presented a powerful case against Siregar. So far as the hold incident was concerned, Chan’s account was lent plausibility both by the fact that the admittedly damaged speedboat was Siregar’s responsibility and by the fact that if Chan wanted to implicate Siregar falsely he could have done a much stronger job of it. It was also lent plausibility by the fact that it fitted in with the consistent picture painted by the rest of the evidence. In any event, the hold incident in isolation was not a critical aspect of the Crown case. In view of that fact, and the fact that the cross-examination of Chan did not clearly join issue on whether Siregar looked down as distinct from coming down, the trial judge is not to be criticised for not giving a detailed direction about the evidence relating to the hold.

In short, the principles discussed in the authorities relied on by counsel for Siregar do not apply. It was not true that an important part of the defence cases derived from inconsistencies in Chan’s evidence or that much depended on his reliability: in the end there was significant common ground between Chan and those two appellants.

Indeed, if the trial judge were to have analysed the evidentiary material going to both the derrick question and the hold question in the detail demanded by counsel for these appellants, the summing up would have taken many days. That is because if those two issues merited attention of that degree of detail, many other issues, some of much greater importance, would have required commensurate attention. The trial judge was obliged to ensure that the jury understood the Crown cases and the nature of the defences advanced. This he did. It would have been wrong to go over virtually all the evidence. Ismunandar Ground 4: circumstantial evidence

Ground 4 was: “His Honour erred in failing to direct the jury as to circumstantial evidence particularly as it applied in the case against the Appellant.”

The direction complained of was as follows: “In regard to the proof of knowledge, it must be obvious to you that unless a person says that he knows something, then knowledge is always to be inferred from circumstances surrounding the action in question. There may be surrounding circumstances of an action; for instance, being at a particular place at a particular time; the physical circumstances or appearance of objects; the time and place of actions; the general nature in this case of the voyage and of the ship and what in fact happened during its voyage. All of those may be looked at as the surrounding circumstances. And there may be actions performed by individual accused, they too may be taken into consideration. There may be actions contrary to the proper practice of a person who has particular skills, that too can be taken into consideration. And there may be matters which were said not to be known when it might be expected that they would be known. All of those matters are the circumstances from which you can come to a view whether or not a person knows something. Having looked at all the circumstances, how then do you treat them? You must deal with them in exactly the same way as any circumstantial case that is to be determined. Circumstantial evidence is evidence as other evidence and is receivable in these courts and is regularly received in these courts. You must have regard for the fact that fingerprints are circumstantial evidence. But in order for that evidence to be accepted beyond reasonable doubt, it must point to the guilt of the accused and be capable of bearing no other rational hypothesis. That seems to be a rather large phrase but if I can take you to a humble example. If you are sitting in your loungeroom and the light goes out, four things might go through your mind. Firstly, that there has been a power cut. Secondly, the light globe has blown. Thirdly, that a fuse has blown and fourthly, there is something wrong with the circuitry on your house. Let us assume that you go into the next room and turn on the light and it goes on, then you have satisfied yourself beyond reasonable doubt that there is not a power cut. Let us assume that you go out to the kitchen, or wherever it is that you keep spare bulbs, and you take a spare bulb and you bring it back and you put it into the socket and it still does not work. You will have satisfied yourself beyond reasonable doubt that that is not the problem. Let us assume that you go out to the fuse box wherever it is in your house or apartment or flat and you look at the fuses and all of those are intact, then you would have satisfied yourself beyond reasonable doubt that that is not the problem. And so you would be left with the one regrettable option, that is, that there is something wrong with the circuitry in the house. You call in an electrician the next morning and he goes up into roof space and he comes down with a piece of burnt out wire. Even before he did that you knew that something like that would occur because you had cut off every other possible alternative. And we do this in our lives on a regular basis when dealing with situations in which there are alternatives. You cut off all the alternatives and what you are left with, of that you can be satisfied beyond a reasonable doubt. It is not necessary to be satisfied beyond a reasonable doubt of all the matters advanced by the Crown but you must be satisfied of course beyond reasonable doubt to conclude that the circumstances indicate guilt and are capable of bearing no other rational inference.”

However, the trial judge also gave specific directions in relation to Ismunandar: “It is said by the Crown that in the case of Ismunandar, that his knowing concern is to be inferred from the circumstances. The Crown says that he was recruited by drug smugglers for this enterprise. He was a chief officer of the ship and you would have regard to his evidence and his demeanour whilst he was giving evidence. The Crown says that what he did was quite contrary to all the proper practice of a mate on board a cargo ship. His duty was to see that the cargo was lashed, to check the equipment, the water tanks, the fresh water tank, and check the log. To turn away from all of that and say the captain told me not to do it, cannot be believed when you compare it with his duties. And when confronted with these problems he merely says that the fourteen bags of heroin which came on board became luggage rather than cargo so that he did not have to have a look at them. It was taken on board in an area which is notorious for drug smuggling, about which he apparently knew nothing and when confronted with Prada bag, the same bag as those that were found at Grant’s Beach, he again blames the captain. He participated in the falsification of the log and in the non maintenance of the log. And it only is properly filled in from 24 September when in reality it joins the course of the false log. Why would this be falsified? It could only be falsified if it was a trip to an area where there would be drugs to be taken on board. As far as the charts were concerned, he said that he did not plot the course. There were markings of his on the maps but the course had been pre plotted but you can see on one of those maps that the trip north to the Andaman Sea has been obliterated, only the trip south out of the Andaman Sea is to be found.”

The trial judge also summarised Ismunandar’s evidence in chief and in cross-examination at some length. At various stages in the summing up the trial judge reminded the jury of the burden and standard of proof, particularly with reference to the knowledge of the accused.

Counsel for Ismunandar submitted to this Court that the initial directions on circumstantial evidence were inadequate, whether they were viewed alone or in combination with the criticism in relation to s 165 (Ismunandar’s Ground 3) or the criticism that the summing up was unfair and prejudicial (Ismunandar’s Ground 5). Ground 3 has already been rejected and Ground 5 is rejected below. The specific submission on Ground 4 was that knowledge of the totality of a group of matters taken together was critical to a conclusion of knowing participation. This group comprised the evidence of the secret compartment; the rice bags; the repackaging; the use of bags as repackaging which were of a kind found in Ismunandar’s cabin; and storage of the bags in the secret compartment. In our opinion these matters did not constitute, to use the words of Ismunandar’s written submission, “a group together which were critical to his knowledge of heroin importation”. Ismunandar’s relationship to some of these matters could support an inference of knowledge even if the jury were not satisfied in connection with his relationships to others of them. Each of the particular matters was referred to at some stage of the summing up. Rule 4 applies, since no request was made for a direction that the jury should consider the matters in combination and that it was critical that they be satisfied in relation to all of them. Even if it had been, it would not have been wrong to refuse to give it.

It is also significant that the suggested list omits several key aspects of Ismunandar’s position – his rank as chief officer; his failure to see to the proper stacking of the rice bags; the taking onto the Uniana of the rice bags in an area notorious for drug smuggling; the falsification of the log; and his repeated and unconvincing tendency to blame the captain whenever he could not explain his own conduct. Ismunandar Ground 5 and Siregar Ground 4: unbalanced summing up

Ismunandar’s Ground 5 is: “His Honour’s summing-up to the jury was so unbalanced and unfairly prejudicial to the Appellant as to constitute such a substantial miscarriage of justice as to cause the trial to miscarry.”

Siregar’s Ground 4 in his Further Amended Grounds of Appeal is: “The trial judge’s directions to the jury were unbalanced and unfair.”

In relation to these grounds, Ismunandar’s submissions rely on the arguments advanced in relation to Grounds 3 and 4. The arguments advanced in support of these grounds do not support Ground 5, for they have already been rejected.

In essence Ismunandar’s argument was that there was a lack of balance because the summing up concentrated too much on Chan’s evidence and concluded with “most emotive language in favour of the Crown position”. It was submitted that to finish on that note was unfair. It was also submitted that it was wrong to criticise Ismunandar for not carrying out the duties of a chief officer when the Crown did not call evidence of what a chief officer should do if given orders by his captain to deviate from his usual duties. Finally, it was submitted that there was no evidence of how cargo was to be distinguished from baggage. These last two submissions can be dealt with at once: they show no overall imbalance or unfairness, and they show no potentiality for a conclusion that there was a miscarriage of justice.

Counsel for Siregar relied on the deficiencies in the directions about Chan considered above, which need not be considered further in view of their rejection above. He submitted that excessive space was devoted to Chan’s evidence so far as it was against Siregar’s interests, too little space to the cross-examination of Chan by Siregar’s counsel, too little space to Siregar’s evidence so far as it favoured his own interest, and too much space to the cross-examination of Siregar. Counsel for Siregar also relied on the “strong and emotive terms” which the trial judge used about the Crown case near the end of the summing up. He said the summing up was “hopeless” and that the “defence was not put”.

In our opinion the approach of the trial judge to a complex case involving four accused persons was not unfair. After general remarks at the outset, including remarks about the problem of Chan’s evidence, he put the Crown case against Lau, then the Crown case against Ismunandar, then the Crown case against Siregar, and then the Crown case against Chen. He then put, in turn, the defence case for Lau, Ismunandar, Siregar and Chen. He returned briefly to Lau’s defence case. He then analysed the Crown evidence, particularly that of Chan, including what counsel for the various accused asked of Chan in cross-examination. The following day he analysed Chen’s evidence, Siregar’s evidence and Ismunandar’s evidence. He then summarised the Crown case in the light of the evidence given by the Crown witnesses and the accused. In substance he asked whether a reasonable doubt existed in relation to the Crown case against each of the accused.

The structure of the trial judge’s summing up directed the jury in a meaningful way as to the different Crown cases against each of the accused and as to the individual cases advanced on behalf of each of the accused. This necessarily led to some repetition of the Crown case, as there was a body of common evidence relied upon by the Crown in proof of the guilt of each of the accused taken separately. This was particularly so in relation to the evidence of Chan, which was very lengthy. The individual cases of each accused were put succinctly so as to draw to the jury’s attention both the evidence relied on by the accused as showing weaknesses in the Crown case as well as raising the alternative hypotheses advanced by the individual accused persons and the arguments advanced by counsel on their behalf. While its structure meant that the Crown case was put several times, that was equally true of the defence cases. The summing up was concise and measured. Listened to as a whole, it would have left the jury with no adverse impression of the cases that had been advanced by each of the accused beyond the inherent weakness of those cases. Indeed, the summing up is admirably clear in the way in which it reminded the jury of the salient features of the long trial. The references near the end in emotive language were not references by which the judge was communicating his personal views. They were references to the terms of the Crown’s submissions with a view to clarifying where the issues lay between the Crown and the accused. That emotive language can be matched by other emotive language, such as “nonsense”, applied to the Crown case: here the trial judge was using words used by defence counsel or expressing the substance of their arguments.

These grounds are baseless. Ismunandar Ground 6 and Siregar Ground 5: unsafe and unsatisfactory

Ground 6 of Ismunandar’s Grounds of Appeal and Ground 5 of Siregar’s Further Amended Grounds of Appeal were that the verdict of the jury was unsafe and unsatisfactory.

Ismunandar’s argument was that the jury’s verdict was against the weight of the evidence, and that a properly directed jury should not have convicted, since the circumstantial case against Ismunandar was not capable of establishing beyond a reasonable doubt the alternative hypothesis consistent with innocence, namely that the Uniana was engaged in people smuggling. In effect all the preceding arguments were relied on.

Counsel for Siregar too relied on all his preceding arguments so far as they pointed to unreliability in the evidence against him.

He referred to Siregar’s evidence that he did not supervise or assist in work on the derrick, to the likelihood that the work would have taken place in port, not at sea, and to Chan’s different versions about the derrick. He did not however refer to what was common ground between Chan and Siregar, which was capable of supporting an inference of knowledge about the work.

He said that Siregar’s involvement with the speedboat did not go beyond the role of engineer in relation to a speedboat with mechanical problems.

He said that the Crown invited the jury to infer that Siregar had installed or supervised the installation of the sea valve, and pointed to Siregar’s denial of this, to Siregar’s evidence that while he was on the Uniana it was not at dry dock or on a slipway, and to McKenzie’s evidence that for the valve to be installed it would be necessary for the ship to be at dry dock or on a slipway. Yet it was open to the jury to reject Siregar’s evidence.

He pointed out that Siregar gave evidence that the only reason he was in the speedboat when it landed at Grant’s Beach was to see to the engine in the event of mechanical problems; that he had not expected to get out of the boat; and that that was confirmed by his wearing ordinary work boots. In fact he did get out of the boat and carry heroin ashore; and even if his evidence on these points were to be believed it would not exculpate him.

He said that Siregar’s evidence that he had maintained an engineer’s log was not refuted by the police failure to find one. The issue was one open to the jury to decide either way.

Finally, Siregar relied on evidence of good character.

The Crown pointed to the responsibility of Siregar, as chief engineer, for ensuring that the Uniana had enough fuel to travel to Australia; to the likelihood that he knew of the route to be travelled in advance; to his inability to account for the missing log; to his role in signing refuelling documents in Singapore containing a false destination; to the likelihood that as chief engineer he would be aware of the void chamber and the flooding valve next to one of the fuel tanks, which he sounded before ensuring that there was sufficient fuel on departure from Hong Kong; and to his admissions about his conversation with Chan in connection with welding the derrick.

In relation to Ismunandar, the Crown pointed to his admitted responsibility for safe storage of cargo and for adequate fresh water supply; to his failure to account for his ignorance of the void chamber next to the main water tank; to his participation in falsifying the log; and to his failure to make plotting marks on sea charts while officer on watch.

All these points made by the Crown have force. Further, a reading of the evidence of both Siregar and Ismunandar reveals numerous unsatisfactory features. In particular, both denied any knowledge of what heroin was and any knowledge that it was exported from south east Asia. In Ismunandar’s case those answers in cross-examination contrasted with his last answer in chief to the effect that in Indonesia he had seen in newspapers or on television that the consequence of heroin trafficking was the death penalty. These were sea officers of considerable experience in those waters who must have had some exposure to the media whilst ashore. If the matter were not so serious from the point of view of the Australian public interest and the position of jeopardy the accused were in, the jury would have been entitled to find these lines of testimony utterly laughable, and to treat them as damaging the credibility of the witnesses in every other significant respect. The Crown cross-examination of each witness as a whole was certainly extremely damaging to their credibility. It showed Ismunandar to be evasive, seeking to deny obvious facts about the internal geography of the Uniana during the two months he was onboard, and embracing absurd propositions such as the proposition that a man rich enough to pay for the Uniana and its crew to smuggle him and him alone to Australia would carry his personal possessions in rice bags without handles. The Crown cross-examination showed Siregar to be unconvincing as to why his arrears of pay were not paid on 14 August 1998, evasive about his knowledge of preparations to make the Uniana ready for a long sea voyage, wholly incredible in relation to his claimed ignorance of the physical features of the Uniana despite being onboard for five months and his lack of interest in where the vessel was in early October, and unimpressive in his claims of being confused by clear questions. In a case where there was circumstantial evidence pointing to knowledge calling for explanation, damage to the credibility of the accused persons giving the explanations made convictions highly probable, and certainly not, to use the out of date expressions employed by the appellants, unsafe or unsatisfactory.

These grounds of appeal fail. Grounds relied on by Chen and Lau

Before the hearing Siregar filed a document entitled “Amended Grounds of Appeal” relying on the same arguments as those advanced by Chen and Lau. At the hearing counsel for Ismunandar sought leave to file in court a document entitled “Amended Grounds of Appeal” in order to advance the same grounds as had been advanced on behalf of Chen and Lau. That leave is granted.

However, these grounds must be rejected for the reasons given in relation to the corresponding grounds relied on by Chen and Lau. Summary

For the above reasons, the appeals by Ismunandar and Siregar against their convictions should be dismissed. Applications for leave to appeal against sentence – Lau and Chen

The appellants Lau and Chen also seek leave to appeal against the severity of sentence. On 16 February 2001 each was sentenced to life imprisonment without parole. The learned sentencing Judge sets out in detail the circumstances of the crime which he concluded must have been found by the jury as established beyond reasonable doubt. Those circumstances have sufficiently been reviewed hitherto in relation to the conviction appeals.

Having outlined those circumstances, his Honour noted that they were not essentially in dispute. What was in dispute - the “central issue” as he described it - was the offenders’ “knowing concern” in the importation, the case the case against each offender, his Honour noted, being circumstantial. His Honour noted early in his remarks that the importation was found to be of 389 kilograms gross and 250 kilograms of pure heroin with an estimated street value of $620 million. Lau

We shall adhere to the order of sentencing adopted by his Honour. Lau was dealt with first.

His Honour summarised the case against this applicant in respect of knowledge as follows: Lau recruited the witness Chan by offering him a job whilst he was unemployed. Lau arranged for Chan to go to Australia to choose a beach suitable to land a speedboat and also arranged for him to go to China to meet the person described as “the boss” , Fei Lo Nam, requiring him to take his papers. When Chan returned from “the recognisance mission” to choose a beach in Australia he went with Lau to Cambodia. His Honour came to the view that it was a reasonable conclusion from the evidence that a man called Poon accompanied them on at least part of that journey. There was evidence, his Honour found, that Poon to all intents and purposes owned the Uniana . Poon renamed the vessel, re-registered it and personally arranged and paid for refuelling it by going to Singapore to meet representatives of the fuel vendors. Lau boarded the vessel, according to Chan, as an interpreter although his Honour found that it became clear under cross-examination that no interpreter was required as Chan spoke English as did Mandagi, the Captain. Lau went in a speedboat with Chan to receive the heroin from the delivery vessel in the Andaman Sea. He apparently was not a sailor, had no experience of small speedboats and appeared to fulfil no other function than to receive the heroin. Lau answered telephone calls from mainland China ostensibly from Fei Lo Nam and conveyed instructions there from to Chan. The use of that telephone continued after the Uniana had reached a position off the coast of Port Macquarie and the speedboat had been launched. Through Lau’s banking accounts passed HK $18,400,000, approximately, much of it by way of cash deposits which were quickly credited and withdrawn. Activity, his Honour noted, in this account always accelerated around the time that Lau made one of his many trips to Cambodia. This activity subsided when funds were totally withdrawn only days before the Uniana sailed. Most of the Crown’s evidence in relation to Lau’s specific involvement came from Chan.

After noting the cross-examination of Chan by Lau’s counsel in relation to the subsequent exculpatory account given by Chan in relation to Lau, his Honour noted that nonetheless the jury convicted. His Honour said: “This could only have occurred if the jury had rejected this second account and accepted the Crown’s submission that Chan had been telling the truth to police in the first instance. This coupled with the financial evidence, the general evidence of the vessel, its modification and its route to Australia, was sufficient, it appears, to convince the jury beyond reasonable doubt of Lau’s guilt”.

His Honour went on to say: “Lau must be seen to have been a person entrusted with large sums of money needed to arrange the exportation of heroin and to have been a person close to Fei Lo Nam or whoever was the head of the enterprise and in whom was reposed sufficient trust to allow him to accompany the heroin down to Australia. A false passport found at Grant’s Beach, appears to indicate that it was Lau’s intention to come ashore with the heroin”. It will be recalled that Lau did not in fact come ashore; he was arrested on board the Uniana .

His Honour expressly stated that he was persuaded beyond reasonable doubt that Lau was: “…an integral part of the organisation which bought this heroin to Australia. He appears to have been its paymaster, if not its financier, and to have played an important role in accompanying the heroin to this country. I regard him as a [principal] in the enterprise and not merely one of the most important persons in the enterprise amenable to the criminal law of this country”.

His Honour then turned to the Crown case against Chen on the issue of knowledge. Chen accompanied the heroin from the shore to the speedboat and on the speedboat to the Uniana . Chen unpacked the heroin from the sacks and rearranged the blocks in the sports bags; this was done at night in the hold of the vessel where the speedboat had been replaced in its cradle. He found it to be a reasonable inference that Chen secreted the bags in compartment below the deck of the hold and further, that it would have been clear from the size and the nature of the small packages that they contained heroin. Chen accompanied the heroin to Australia when it left the vessel; he was found in possession of a Glock semi-automatic pistol and false passport. His passport disclosed a number of journeys through South-East Asia and because of the clothing he was wearing in the picture displayed on that document, that document was obtained at some other time than the last journey, for that clothing was never found in his possession at Grant’s Beach.

His Honour referred to the evidence given by Chen as to his ignorance that the vessel was to receive the heroin and to the effect that his accompanying the drugs was a “mere coincidence” . His Honour said that inherent in Chen’s evidence was a complete denial of knowledge. His Honour came to the view that the testimony of Chen as to his journey through Vietnam and Burma was “riven by inconsistencies and relied heavily on strange coincidences”. The jury, according to his Honour, must have accepted the Crown case on knowledge and in so doing rejected the evidence given by Chen.

His Honour’s express finding (beyond reasonable doubt) in relation to Chen were that he was: “…a person in this organisation in whom was reposed sufficient trust for him to have been given the responsibility of accompanying approximately 400 kilograms of heroin powder through its journey from wherever it was exported to the middle of the Andaman sea and thence to Australia, where, armed with both a gun and a false passport, the prisoner saw the heroin to the shore. As with Lau, I regard him as not merely one of the two most responsible persons amenable to the criminal law in this country but one of the principals in this enterprise”.

His Honour, having dealt with the other offenders (here appellants) by adopting a similar approach, said the following about the objective nature of the crime with which he was concerned: “This represents a crime of massive proportion perpetrated by people with substantial skills and substantial means. The organisers were attentive to detail and left little to chance. Only excellent detection and the prompt seizure by Customs and the Royal Australian Navy of the Uniana when it strayed into Australian territorial waters frustrated the successful perpetration of this crime. It is an offence which carries the most serious penalties in Australian law and because of the magnitude of the enterprise it must fall within that band of the most serious cases.”

His Honour turned to the subjective component of the case for Lau and Chen on sentence. Lau gave no evidence during the trial or at the sentence hearing. Lau and Chen came before the Court as persons “of good character” a fact which his Honour said would be given “its appropriate weight”. In relation to Lau he noted that he was a 46-year-old married man with a child aged 4 with an elderly mother living in China; he spoke no English and came from an impoverished background. His Honour noted that he was unlikely to receive any visits whilst in custody. As to Chen, his Honour noted that nothing more was known about him other that he is a person of prior good character and married with one child; he was a process worker in the Chinese province of Hainan.

Having determined that prison sentences were the only appropriate punishment, his Honour said that he had given consideration to the matters required under s16A of the Crimes Act 1914 (Cth) and in particular s 16A (2)(a), (j), (k), (n), (m) and (b). He was conscious of the foreign cultural background of the offenders of the fact that their sentences would fall more heavily upon them than other prisoners and of the fact that the sentences would fall “very heavily upon their families in China and Indonesia”. General deterrence, his Honour held, must be given precedence over all other features, subjective or objective.

In respect of Lau and Chen his Honour again stated his satisfaction beyond reasonable doubt that “they are principals in this massive importation, that is, they are most seriously involved in the most serious of offences of this nature and I can see no reason why they should not be dealt with by imposing the maximum penalty permissible by law .” (emphasis added)

The sentences which are the subject of the applications for leave to appeal were then imposed. It is to be noted that the offender Siregar was sentenced to life imprisonment with a non-parole period of 20 years as was the offender Ismunandar.

It is further to be noted that his Honour later sentenced the offender Mandagi (the Master of the vessel) to life imprisonment with a non-parole period of 25 years. This sentence was the subject of a successful appeal to the Court of Criminal Appeal (Dowd and Greg James JJ, Smart AJ) [2002] New South Wales CCA 57, 11 March 2002. The judgment in that appeal (which had been heard on 28 May 2001) was handed down after the conclusion of submissions in the current appeal.

The applicant Lau submitted that the learned sentencing Judge fell into error on two discrete bases; first, by failing to take into account comparative sentences for like offences in determining the appropriate sentence to be imposed; and, secondly by failing to take into account and/or give any consideration, when imposing the maximum sentence permissible under the law, to relevant and applicable human rights instruments and precepts relating to the detention and imprisonment of detainees.

The written submissions (there were no oral submissions) acknowledge that the applicant was sentenced on a basis consistent with the finding of the jury that he had knowledge of the presence of heroin and reference was made to his Honour’s remarks above as to the “massive proportion” of the offence and the “magnitude of the enterprise” and his Honour’s view that the crime fell within the band of the most serious of cases. The submissions refer to his Honour proceeding to sentence the applicant Lau because he was satisfied beyond reasonable doubt that he was a principal and because in the circumstances he saw no reason why he should not impose the maximum penalty under the law.

The applicant then makes the bald submission that his Honour fell into error. This, as we understand it, is amplified by the contention that there was insufficient evidence to warrant such a finding beyond reasonable doubt. The applicant acknowledges that it was not appropriate for his Honour to have found Lau to have been a mere courier but goes on to assert that his role was somewhere in-between and more akin to a “lieutenant or a mid-level executive”.

It is argued that the task of his Honour was rendered difficult given the jury’s verdict rejecting (in the absence of any evidence from Lau) the asserted lack of knowledge. It is contended that this gave rise to a situation to which recourse is had to certain statements made by the High Court in Cheung v The Queen (2001) 185 ALR 111; [2001] HCA 67 (22 November 2001). The applicant seeks comfort from certain observations made by Gleeson CJ, Gummow and Hayne JJ in paragraphs [7] and [8] where reference is made to the traditional or familiar aspects of the inscrutability of a jury’s verdict. Their Honours referred to the proposition that in order to convict a jury must find beyond reasonable doubt the constituent elements of the offence charged and that provided they reason to such a conclusion in a manner consistent with properly framed judicial directions their process of reasoning does not necessarily have to be unanimous. Their Honours went on to say: “ On occasion, this may mean that a jury’s verdict on the black and white issues of guilt may leave to a sentencing judge a difficult task of deciding questions of degree involved in assessing an offender’s capability, and the proper measure of punishment. There are many cases involving either a plea of guilty or a conviction following a plea of not guilty, where the task of assessing an offender’s culpability is more difficult than that of determining his or her guilt”.[8] It is contended that such is the case here.

With this component of the submissions in support of the application we simply cannot agree. It must be borne in mind, as stated above, that the only issue of substance in the trial generally in relation to Lau especially (and he gave no evidence) was knowledge; the circumstances of the importation otherwise were not in dispute. The jury’s verdict, as the applicant acknowledges, amounted to a rejection of the applicant’s asserted position in relation to knowledge and acceptance beyond reasonable doubt of all the constituent elements of the offence. The factual issues with which his Honour was confronted upon the jury’s verdict were equally as “black and white” as those which the jury had to decide. The mere assertion that there was no evidence upon which his Honour could be “satisfied beyond reasonable doubt” is simply not available. In our view there was an abundance of evidence upon which his Honour, upon reviewing it as he did, independently could come to the view to that level of satisfaction for the purposes of the sentencing exercise, with the same confidence as that which was apparently experienced by the jury in the performance of its task.

The next component of the first basis for attacking the sentence falls under the heading “Failure to take into account comparative sentences”. As the applicant rightly says, his Honour refers to no comparative cases in his remarks. As the applicant rightly states, the Crown in its written submissions to the learned sentencing Judge refers to no other cases. It is not clear whether his Honour was assisted by Counsel appearing for the applicant in the sentencing process by references to other cases. In any event, a submission under this heading contends that there are “two recent cases which provided” comparative support to what is asserted to be the appropriate sentence to be imposed. Regrettably, the first of the two “recent” cases, Regina v Gonzales-Betts [2001] NSW CCA 226 was a decision of this Court (Dowd, Barr and Greg James JJ) on 8 June 2001, well after the date of his Honour sentencing the applicant. That case involved an appeal against conviction and sentence in elation to an importation of a commercial quantity of cocaine (224.8 kilograms bulk, 172.2 kilograms pure). The applicant had appealed against the severity of sentence that had been imposed upon her - life with a non-parole period of 22 years. In that case the importation involved the use of a mother ship to bring the cocaine to Australia from which could be launched a smaller vessel to enable the transfer of the drugs to the mainland. In the 6 short paragraphs of the principal judgment (Greg James J) dealing with sentence the real issue in that appeal was whether the learned sentencing Judge in that case had been in error in treating the applicant as a “mid-level executive” and thus exaggerated her role. It was found that the judge was not in error in so characterising that offender and the appeal against sentence was dismissed. No assistance is gained from that case at all. In our view, here, his Honour found Lau to be the “paymaster if not financier” and regarded him as a “principal” in the enterprise and not merely one of the most important persons in it. We add that in the written submissions there is a passing reference to the sentence imposed upon Ms Gonzales-Betts’ co-accused Megitt [1999] NSW SC 606, to what end is unclear as Megitt pleaded guilty.

The identity of the second of the “two recent cases” is unclear. In submissions references were made to the decision of the Court of Criminal Appeal in Cheung (1999) 154 FLR 259 which was the subject of the unsuccessful appeal to the High Court referred to above. The appellant in that matter had been sentenced to imprisonment for life with a non-parole period of 21 years and 11 months having been instrumental in arranging for the shipment of 50 kilograms (38 kilograms pure) of heroin to Australia. All that the applicant here does is draw our attention to the Court having found that the sentence was implicitly within the available range given the seriousness of the matter.

Contrary to the expectation of the applicant, the Crown did not rely or indeed refer us to the sentence imposed by Ireland J in Regina v Law Kuan (SC NSW, unreported, 31 March 1999). No doubt the reason for that was that the Court of Criminal Appeal quashed the conviction and the sentencing did not receive consideration [2001] NSW CCA 291. In any event in relation to the submission with respect to comparative sentences, the applicant fails to identify “relevantly identical” features in cases to which reference is made. Nor does the applicant provide any authority for the proposition that the mere failure to refer to “comparative sentences” of itself constitutes an error. In this context, as the Crown submits, it is desirable to bear in mind what the High Court said in Wong and Leung (2001) 185 ALR 233; [2001] HCA 64 at [65]: “To focus on the result of the sentencing task, to the exclusion of the reasons which support the result, is to depart from fundamental principles of equal justice. Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect…”.

The submissions for the applicant then proceed to what really is the nub of what was being put on his behalf. The contention is that his Honour was in error in not setting a non-parole period. The applicant acknowledges that in making that submission it is not contended that it was not open for his Honour to impose the maximum penalty (namely a life sentence) but that his Honour fell into error by failing to fix a non-parole period. First, the applicant relies upon the comparative sentences: they offer no support in our view.

The applicant goes on to argue that his Honour’s reasoning process points to a view he held that the size of the importation was determinative of the sentence that should ultimately be imposed. This submission is founded in the decision of the High Court in Wong v The Queen ; Leung v The Queen (2001) 185 ALR 233; [2001] HCA 64 (15 November 2001) per Gaudron, Gummow and Hayne JJ (at [64]): “In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case. Those features will also include those that differentiate between particular cases: the quantity of drug involved, the offender's knowledge about what was being imported, the offender's role in the importation the reward which the offender hoped to gain from participation. All these are matters properly to be taken into account in determining a sentence. We deal later with the significance to be given to the weight of the drug imported. In general, however, the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed. Our purpose in mentioning these matters is, however, not now to attempt an exhaustive statement of relevant factors, or to attempt some formulation of applicable principles. What is important for present purposes is that it is all of the matters mentioned, and others, including those mentioned in Pt 1B of the Commonwealth Crimes Act, which should be taken into account in formulating applicable principles”.

No fair reading of his Honour’s remarks on sentence can lead to the conclusion that his Honour gave improper, undue or disproportionate weight to the quantum of drugs involved in the offence. The quantum of drugs was merely one factor which led to the result now sought to be impugned, as we understand his Honour’s reasoning. Another was the sophistication of the enterprise in terms of its planning and logistics. There is even greater difficulty in impugning the result on the basis advanced for the applicant when it is clear that the circumstances of the importation were not in dispute and the findings of knowledge in relation to Lau were adverse. His Honour was confronted with virtually a non-contentious factual component involving a massive quantity of drugs and the jury’s verdict rejecting the applicant’s position as to knowledge. On no fair or rational basis can anything which his Honour said be isolated to the point where it can be concluded that contrary to what was said in the High Court (in the passage extracted above) improper or undue weight was given to the quantity of drugs. In our view his Honour’s approach to the several components, both objective and indeed subjective, to the extent that the latter were available to him, was balanced. We find there to have been no error on the part of the learned sentencing Judge on the discrete basis advanced that undue weight was given to the quantity of drugs.

Next it is contended that his Honour failed to provide proper and/or adequate reasons as to why he was of the view that a non-parole period should not be fixed in circumstances where the head sentence of life imprisonment was to be imposed. In this regard s19AB (4)(a) of the Crimes Act (Cth) states that where the Court decides that a non-parole period is not appropriate it must state its reasons.

As referred to above, in his remarks on sentence his Honour said: “I can see no reason why they should not be dealt with by imposing the maximum penalty permissible by law”. Clearly his Honour did not embark upon any separate statement of reasons as to why a non-parole period should not be fixed. What is quite evident from the statement cited above is that the reason for the non-fixing of a non-parole period was the view formed by his Honour that the gravity of the offence was so great that the maximum sentence should be imposed. In those circumstances we do not consider any error arising from his Honour not cataloguing separate reasons for not fixing a non-parole period in the context where his Honour has catalogued reasons for fixing the maximum which of their very nature exclude a non-parole period.

It is next argued that his Honour was in some way in error by failing to take into account “the principle of proportionality” . This is not amplified in the submissions. It is merely stated for the applicant that the length of the sentence imposed is “grossly disproportionate” to the offence that was committed. It is submitted that the test of proportionality must be applied “generally” and not on an individual basis and that such a test requires a sentencing judge to make a comparison with punishments imposed for like crimes committed within the same jurisdiction.

Insofar as this proposition is repeating the submission as to an asserted error by failing to have regard to comparative sentences, it is unacceptable. We assume that the submission is directed to the fundamental proposition that there should be proportionality between a sentence and the facts of the crime itself or “that punishment be proportional to the crime” ( Veen v The Queen [No 2] (1988) 164 CLR 465 at 472 per Mason CJ, Brennan, Dawson, Toohey JJ). We are of the opinion that his Honour in no way offended this principle. His Honour makes perfectly clear in his sentencing remarks his findings as to the objective facts, the way he took into account such subjective material as was available and, most importantly, his characterisation of the offence in the highest band of seriousness. Having followed that path and otherwise, in our respectful view, complied with the requirements of Part 1B of the Crimes Act 1914 (Cth) his Honour imposed a sentence within his discretion as conceded by the applicant. We are not persuaded that there was a want of proportionality between the facts and the offender, between the crime and the punishment, merely by reason that his Honour otherwise in the proper exercise of his discretion and with sufficient explanation did not set a non-parole period.

We are satisfied that the applicant has failed to make good any of the components of the first basis of his application.

As to the second basis (the human rights precepts basis) in the written submissions reference is made to s10 of the Bill of Rights 1688 (UK) c2 as applying to this appeal and forming part of the common law of the Commonwealth. We are informed in the written submissions that s10 of the Bill of Rights and the principle embodied in it have found expression in what are described as a number of human rights instruments to which Australia is a signatory/party, for example article 7 of the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights. Reference is also made to article 5 of the Convention Against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment to which it is said that Australia became a party on 8 August 1989. It is also submitted that article 10.3 of the International Covenant on Civil and Political Rights is significant.

Briefly stated, it is the contention of the applicant that the common law and such human rights instruments and/or precepts “must be taken into account in determining the appropriate sentence to be passed” , this relating both to the imposition of an appropriate head sentence and the determination of whether or not a non-parole period should be fixed in accordance with s 19AB of the Crimes Act .

The end to which these submissions in writing were advanced is uncertain; it may be in effect to assert that the proper application of these instruments to the law of the Commonwealth as embodied in Pt 1B of the Crimes Act should bring it about that a sentence for the term of the offender’s natural life would never be imposed. It is otherwise difficult to understand these submissions as affecting the question of proportionality, comparative sentences and the failure to fix a non-parole period additionally to what hitherto has been put and put unsuccessfully. No submission has been made that the power to impose a life sentence without parole was outside the Constitutional reach of the Parliament or the exercise of the power by the trial judge being otherwise contrary to law. His Honour had formed, as we have said, a view as to the gravity of the objective circumstances of the crime and otherwise took into account, as there was available to him, factors subjective to this applicant in the context where deterrence was of critical importance. There is nothing, as the Crown submits, in his Honour’s reasons for sentence to suggest that he was not acutely aware that the sentence he was to impose would maintain the applicant in custody for the term of his life and thus be separated from civil society and the amenities of such family life as he had thitherto enjoyed. Parliament regarded a life sentence without parole as a sentence which ought to be imposed for crimes of the type under consideration in appropriate cases. Parliament did not regard a life sentence without parole in an appropriate case as cruel, unusual, inhuman or degrading. If ever there was an appropriate case to impose a life sentence without parole it was each of these two cases. Chen

With respect to the applicant Chen the identical submissions are made. The only additional matter raised with respect to Chen was a complaint that his Honour accepted that the applicant was of good character, something that he had not been prepared to direct the jury on during the trial itself. That aspect has been dealt with in relation to the conviction appeal. His Honour did take into account in the discrete exercise of sentencing Mr Chen the matter of his good character.

In all other respects the observations made above in relation to the application of Lau apply equally to Chen. Conclusion

We are not persuaded that any error has been shown to have been made by the learned sentencing Judge in relation to any of the discrete matters raised by each of the applicants, that is, with respect to his Honour’s finding beyond reasonable doubt the role in each case, his Honour’s characterisation of the objective circumstances of the crime, his Honour’s conclusion that the crime fell within the band of the most serious of cases, the issue of proportionality, the matter raised in relation to comparative sentences, his Honour’s approach to all the factors including the propriety of the weight he attached to the quantum of drugs, the question of deterrence and the ultimate penalty imposed.

We are of the view that the crime so offended the public interest that the maximum sentence was appropriate. His Honour the learned sentencing Judge in his overall approach did not offend anything the High Court said in Wong and Leung with respect to sentencing for offences of this kind. The ultimate result correctly reached by his Honour consequent upon his proper characterisation of the crime as in the band of the most serious of cases conforms with what we consider still to be available as a statement of general principle as enunciated in this Court (Carruthers, Finlay and Badgery-Parker JJ) in Twala (unreported, 4 November 1994) where Badgery-Parker J said at 7: “However, in order to characterise any case as being in the worse case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed”. See also Regina v Kalache (2000) 111 A Crim R 152 at 160 per Sully J and Regina v Thomson and Houlton (2000) 115 A Crim R 104 at 138 (paragraphs 157-158 per James J).

Certain observations made by Sully J in 1991 are still relevant and bear repetition: what his Honour said in Regina v Cheung Wai Man and Ors , on sentence, 22 March 1991, was: “The importation of heroin into this country in any amount and at any time constitutes a deliberate threat to the wellbeing of the Australian community. The same is to be said of any form of trafficking in heroin within this country. The importation or the attempted importation of, and the trafficking or attempted trafficking in, a quantity of heroin of the amount here in question is in a very real sense a declaration of war upon this community. It is a distinct challenge both to concepts of human dignity and to moral values otherwise which are fundamental to our way of life. It is no less a challenge to the rule of law which is in the end the ultimate guarantor of the personal freedoms and of the social stability which all of us Australians take for granted. In the face of such challenges each of the institutional supports of our society has a role to play. That of the Courts is to punish and deter according to law. Obviously, the Courts alone cannot meet adequately, let alone defeat, the challenge of which I have been speaking. What the Courts can do is to punish drug related crime in a way which signals plainly to drug traffickers, especially foreign drug traffickers, that the Courts are both able and willing to calibrate their sentences until a point is reached at which, to a significant extent even if never perfectly, fear of punishment risked will neutralise the greed which is the only possible motive of those who…engage in drug related crime…”.

Reference has been made above to the decision of this Court (Dowd, Greg James JJ and Smart AJ) in the appeal of Mandagi [2002] NSW CCA 57 on 11 March 2002. Mandagi was the master of the Uniana and had been sentenced by his Honour Judge Shadbolt after conviction on 8 March 2000 (that is, after his Honour had sentenced the present appellants) to life imprisonment with a non-parole period of 25 years. Mandagi’s appeal against conviction was dismissed. His sentence appeal however was allowed and his sentence was varied to one of imprisonment for 27 years with a non-parole period of 19 years. The sentence appeal in Mandagi was allowed on the issue of parity with the sentence imposed upon the controversial witness Chan. Chan had been sentenced, consequent upon a plea of guilty, to 13 years imprisonment with a non-parole period of 10 years. The parity issue is discussed at paragraphs 89 and following of the judgment of the Court in Mandagi . The conclusion reached by Smart AJ on the discrete issue of parity with which his Honour was concerned is as follows [111]: “The crime committed by the appellant was a very grave one as was that committed by Chan. Both were involved over a lengthy period in the intended importation. Both the appellant and Chan had a propensity to lie and this makes sentencing more difficult. Both tried to play down their roles. Their roles were different but Chan’s criminality and the appellant’s criminality were about equal. Both were in difficult financial circumstances and both needed work. The financial rewards for Chan were to be much greater than those of the appellant. Even allowing for Chan’s plea of guilty and his assistance to the authorities the disparity between the sentences imposed upon Chan and the appellant is marked and gives rise to a justifiable sense of grievance on the appellant’s part”.

We do not consider either the outcome or reasons therefor as enunciated by Smart AJ in Mandagi have any relevance to or effect upon our approach to our determination of the present applications for leave. Nor do we consider it either necessary or appropriate to remark upon the correctness or otherwise of the decision of the Court in Mandagi . This Court is concerned with applications for leave to appeal circumscribed by the ambit of the grounds thereof and submissions made in support as referred to above. None of these included any question of parity. That is not surprising in view of the fact that whatever significance the respective roles and relationships of crew members such as Mandagi, Siregar and Ismunandar might have from the sentencing point of view, Lau and Chen are in a wholly different category.

The principles in relation to parity are well known: Lowe v The Queen (1984) 154 CLR 606: Postiglione v The Queen (1977) 189 CLR 295, subsequent Court of Criminal Appeal (1997) 98 A Crim R 134. A further principle in this context of course is the entitlement in the Court of Criminal Appeal to reduce an otherwise appropriate sentence in order to avoid disparity engendering a justifiable sense of grievance, that entitlement being a discretionary one. The exercise of that discretion may be affected by a view being formed that a stage has been reached at which the inadequacy of the lower sentence is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one, and a reduction of an otherwise appropriate sentence to remove that disparity becomes an affront to the proper administration of justice: Regina v Diamond (NSW CCA, unreported, 18 February 1993 per Hunt CJ at CL at 5-6, with whom James J agreed, Smart J – as he then was- dissenting). The application, if any, of such principles in the light of what the Court chose to decide in Mandagi is, in our view, academic. Siregar and Ismunandar

Counsel for Siregar submitted that if Mandagi’s sentence were interfered with, there would “seem to be a basis for an application” that Siregar’s sentence should be reduced. Counsel for Ismunandar appeared to want his application for leave to appeal against sentence not to be dealt with until after the conviction appeals had been decided. No further submissions have been received. We think that the best course is to stand the applications of Siregar and Ismunandar for leave to appeal against sentence into the next Registrar’s callover with a view to the Registrar ascertaining from those applicants whether it is desired by them that their applications should be prosecuted and, if so, for the Registrar to make the directions for the filing of written submissions and for the conduct, if the applicants so desire, of an oral hearing.

Orders 1. The appeals against conviction by Chen, Siregar, Ismunandar and Lau are dismissed. 2. The applications by Chen and Lau for leave to appeal against sentence are allowed; the appeals against sentence are dismissed. 3. The applications by Siregar and Ismunandar for leave to appeal against sentence are stood over to the next Registrar’s callover.