Cranney v R; Huynh v R

1. [1]

   HOEBEN CJ at CL: I agree with Price J and the orders which he proposes. While I agree the trial judge’s directions as identified in Grounds 1 and 2 (Cranney) and Grounds 1 and 5 (Huynh) were incorrect, the applicants should be bound by the way in which their cases were conducted at trial. In any event, the applicants were not prejudiced by the incorrect directions because they imposed a higher test than that imposed by the statute creating the offences.

2. [2]

   To the extent that the applicants have based their Grounds of Appeal upon assertions that the verdicts were unreasonable, those submissions should be rejected. Having made my own independent assessment of the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that they had committed the offences of which they were convicted.

3. [3]

   LATHAM J: I agree with the orders proposed by Price J and with the reasons for those proposed orders. I also agree with the additional remarks by Hoeben CJ at CL.

4. [4]

   PRICE J: The applicants Christopher Phillip Cranney and Huy Bao Van Huynh were tried before Judge Whitford SC and a jury in the District Court at Sydney. With no disrespect to the applicants, I will refer to them by their surnames.

5. [5]

   Cranney had entered pleas of not guilty to all five charges included in the joint indictment upon which he had been arraigned with Huynh. Count 1 charged that between about 1 September 2011 and about 21 December 2011, Cranney conspired with others to import a commercial quantity of pseudoephedrine contrary to subss 11.5(1) and 307.11(1) of the Criminal Code (Cth) (“Criminal Code”). Count 3 charged that during the same period, in his capacity as a Commonwealth public official, Cranney dishonestly agreed to receive or obtain a benefit for himself, namely money, with the intention that the exercise of his official duties would be influenced contrary to subs 141.1(3) of the Criminal Code. It is convenient to refer to a charge contrary to subs 141.1(3) of the Criminal Code as a “bribery offence”.

6. [6]

   Huynh was not charged with these counts.

7. [7]

   Count 2 on the same indictment jointly charged Cranney and Huynh with a charge of conspiracy to import a commercial quantity of pseudoephedrine between about 1 January 2012 and about 30 June 2012. The charge was in the following terms:

8. [8]

   Cranney was further charged with two bribery offences. Count 4 charged that Cranney between 1 January 2012 and about 31 March 2012, being a Commonwealth public official, namely an Australian Customs and Border Protection Service Officer, dishonestly agreed to receive a benefit for himself, namely money, with the intention that the exercise of his official duties would be influenced contrary to s 141.1(3) of the Criminal Code. Count 5, which was in the same terms, concerned the period between about 1 April 2012 and about 31 June 2012.

9. [9]

   After a trial lasting about 8 weeks, Cranney was acquitted on counts 1 and 3. He and Huynh were found guilty on count 2. The jury also found Cranney guilty on counts 4 and 5. The applicants were sentenced to lengthy terms of imprisonment. They have appealed against their convictions.

Cranney’s appeal

1. [10]

   Cranney’s notice of appeal identifies the following grounds:

Huynh’s appeal

1. [11]

   The notice of appeal filed by Huynh identified seven grounds of appeal. At the hearing of the appeal, Huynh was granted leave to add two additional grounds. Accordingly, the nine grounds of appeal are:

2. [12]

   At the hearing of the appeal, Cranney was represented by Ms G Bashir SC and Huynh represented himself. However, the Court had the benefit of written submissions on Huynh’s behalf that were prepared by Mr J Dhanji SC.

A summary of the Crown case against the applicants

1. [13]

   On the Crown case, the conspiracy that was the subject of count 2 followed on from a failed conspiracy to import a commercial quantity of pseudoephedrine in September 2011 to December 2011, the subject of count 1, in respect of which Huynh was not charged and Cranney was acquitted.

2. [14]

   According to the Crown case, Cranney and Huynh were involved with others in a conspiracy to import substantial quantities of pseudoephedrine into Australia, via Sydney International Airport (“SIA”) between 1 January 2012 and 30 June 2012.

3. [15]

   The Customs officers involved in the enterprise included Cranney, Paul Valsamakis (“Valsamakis”) and Adrian Lamella (“Lamella”). Cranney was the most senior officer amongst them. The baggage handler who participated in the enterprise, David Harb (“D Harb”), was a friend of Lamella’s and worked for Menzies Aviation (a baggage handling company) at SIA.

4. [16]

   The other persons who participated in the enterprise during 2012 included Bruno Napoli (“Napoli”) (an associate of Lamella), Huynh (an associate of Napoli), and 7 couriers. Lamella met Huynh through Napoli in early 2011. Throughout 2011, Lamella, Huynh and Napoli met to discuss the possibility of importing illegal substances into Australia using Huynh’s contacts in Asia.

5. [17]

   The Customs officers worked in various roles at SIA, where their primary responsibilities included the detection and prevention of illegal cross-border activity. This involved undertaking risk assessments of travellers and, where necessary, conducting searches of baggage, travellers and aircraft. For this purpose, each of the Customs officers, as required by their duties, had access to the Australian Customs and Border Protection Service (“ACBPS”) intelligence and investigative systems at SIA.

6. [18]

   Cranney commenced employment with the ACBPS on 7 May 2001, and around the start of 2010 became the team leader of the Air Border Security team (“ABS team”) at SIA. He continued in this role until May 2012. The role of the ABS team was to identify and investigate any airport staff suspected of being involved in criminal activity. Staff within the ABS team monitored closed circuit television (“CCTV”) footage of airport staff and employees, and all passengers arriving at SIA. When required, ABS team members would conduct aircraft searches and clearances, and staff within the team had access to information regarding ongoing investigations and planned law enforcement activity. The ABS team also assisted with joint operations conducted with other law enforcement agencies. After Cranney became team leader of the ABS team, Valsamakis was transferred into the team. He continued to work in the ABS team until late 2012.

7. [19]

   During the latter half of 2011, Lamella, Valsamakis, and D Harb commenced planning an importation of pseudoephedrine into Australia via SIA. Lamella communicated with Napoli and Huynh about being involved with sourcing the pseudoephedrine, however, this did not eventuate and Joseph Harb (“J Harb”) (an associate of Lamella) became involved for this purpose. Valsamakis was to be responsible for ensuring that the ABS team would not target the relevant flight and couriers on the date of the importation. D Harb’s job was to retrieve the luggage containing the pseudoephedrine from the flight and to take the luggage out of the airport. Lamella’s role was to liaise between the personnel working at SIA (Valsamakis and D Harb) and J Harb, who was responsible for organising the pseudoephedrine and any couriers.

8. [20]

   During the planning stages of this importation, Lamella, Valsamakis, and D Harb shared information about their rosters so that suitable dates for an importation could be identified and discussed how much they expected to be paid. Eventually it was decided to conduct an importation on either 12 or 13 December 2011. However, this importation did not proceed. Whilst in Thailand in December 2011, J Harb and the other courier became concerned that they would be apprehended by the authorities. They returned to Australia without any pseudoephedrine.

9. [21]

   A short time after this failed importation, Lamella, Valsamakis and Cranney met at Tempe Reserve, near SIA. During the meeting, Valsamakis was angry that the importation had not gone ahead. After some further discussion, Lamella informed Valsamakis and Cranney that he “had something else in the background that [he] was working on”. Sometime thereafter, Cranney, Lamella and Valsamakis met at SIA and discussed organising an importation before Cranney and Valsamakis were transferred out of the ABS team and they also discussed Lamella being transferred into the ABS team.

10. [22]

    During December 2011, Lamella remained in contact with Napoli and Huynh regarding being involved in a future importation. Between 27 and 31 December 2011, Lamella and Huynh exchanged a series of text messages in which Huynh asked to meet. On 28 December 2011, Huynh sent a text message to Lamella stating “[d]on’t forget. Got good news”.

11. [23]

    According to the Crown case, in early January 2012, Huynh informed Lamella that he had sourced pseudoephedrine in Vietnam and Lamella informed D Harb, Valsamakis and Cranney that “my mates are ready”. It was decided that the pseudoephedrine would be imported on a Thai airlines flight travelling from Vietnam to Sydney, via Bangkok, serviced by Menzies Aviation.

12. [24]

    During this period there were also discussions between the conspirators regarding the amounts of money to be made. It was the Crown case that the SIA personnel all informed Lamella that they each expected to be paid $100,000.00 for participating in any importation. Lamella subsequently informed Cranney, Valsamakis and D Harb that they would each receive $50,000.00 in total for an initial importation planned for March 2012. An understanding was eventually reached between the SIA personnel that they would be paid $50,000.00 from the first importation, and that they would make up the shortfall ($50,000.00) from any subsequent importations.

13. [25]

    On 2 January 2012, Huynh sent Napoli a text message which read “[w]hen you going to be free. I need the info asap as my mate will be here next couple of days and I need to know everything by then”. Throughout January 2012, Lamella, Napoli and Huynh regularly met by arrangement through Napoli to discuss the planned importation. In an intercepted call between Huynh and an unknown Vietnamese male on 19 January 2012, the Vietnamese male said “…Can I check something? My mate told me the other day that you’re able to get it out from up there but how do you do that?... You can get it out from the aeroplane, correct?” Huynh response included “…yeah, don’t say anything, come and see me, er, I’ll meet you and we’ll talk later ”.

14. [26]

    Throughout late January and early February 2012, Lamella liaised with D Harb to obtain D Harb’s shift dates. On 2 February 2012 Napoli called Huynh and Huynh asked “you get [to] a find a date about it or what?”. Lamella continued to liaise with D Harb regarding his work dates, and to meet with Napoli and Huynh to discuss the importation. On 3 February 2012, Lamella called D Harb again to ask about the dates that he would be working as Huynh and Napoli were “busting his balls”.

15. [27]

    By 15 February 2012, when Lamella left for an overseas holiday to Thailand, the date had been selected for the importation and the planning was in the advanced stages.

16. [28]

    On 22 February 2012, Valsamakis and Cranney exchanged a series of coded text messages regarding the organisation of the importation. In the text messages, Cranney informed Valsamakis of the need for them to stay “at arm’s length” from Lamella and the others involved in the importation; that he should let others do the hard work and take the risks; and, that they would “reap the benefits”.

17. [29]

    Between 18 and 23 February 2012, Huynh and Napoli engaged in a series of intercepted telephone calls in which they discussed the need to raise some money and the fact that they were ready. As at mid-February 2012, Huynh’s bank account statements recorded a balance of less than $300.00.

18. [30]

    On 28 February 2012, Lamella returned to Australia and arranged with Napoli to meet that evening. That same day, Huynh rented a white Toyota Corolla hatchback (BN11Q0). That evening, Huynh and Napoli drove in the rented car to meet with Lamella at the end of his street. The three men met for about 10 minutes to discuss the importation planned for 9 March 2012.

19. [31]

    During the planning of the importation, Lamella met with Huynh and Napoli and discussed the organisation of the couriers. During one meeting, Napoli stated that he would organise the couriers. At one of their meetings Lamella, Huynh and Napoli also agreed that each of the two couriers would have about 10 kilograms of “gear” in their bags.

20. [32]

    On 2 March 2012, the two couriers Sarmarn Prom (‘Prom’) and Jesse Russell (‘Russell’) paid cash for two return business class tickets travelling Thai Airways to Ho Chi Minh City, Vietnam, departing on 3 March 2012 and returning to Sydney, via Bangkok, on 9 March 2012. On 3 March 2012, the couriers departed Australia.

21. [33]

    At some stage prior to this importation, Napoli provided Lamella with a suitcase identical to the suitcases being used by the couriers and a copy of the bio-data pages from the couriers’ passports. Lamella subsequently met with D Harb and showed him the luggage that the couriers would be using and gave him the names of the couriers.

22. [34]

    On 7 March 2012, Cranney texted Valsamakis to remind him that he was the acting ABS team leader for the shift commencing the following day. It was the Crown case that Cranney was acting in higher duties at this stage and could decide who would act in his team leader role in the ABS team. On the same date, D Harb called Lamella and they discussed problems with the burn phones, which were subsequently used by them on the morning of the importation to communicate with each other.

23. [35]

    On 8 March 2012, at 10:10am, Valsamakis and Cranney exchanged text messages arranging to meet at work. At 11:01am, Valsamakis sent Lamella a text message in which he stated “[t]alk to the big fella. I gotta go home when I finish, he’ll fill me in”. That afternoon Lamella called Cranney in order to discuss the importation and they arranged to catch up and “go for a walk”.

24. [36]

    After meeting with Cranney, Lamella met with D Harb to confirm that the importation was proceeding and other details. Lamella then met with Napoli who, in turn, met with Huynh.

25. [37]

    On 8 March 2012, Prom and Russell boarded a Thai Airways flight in Ho Minh City, Vietnam, and on checking in, each of their bags weighed 28 kilograms. It is estimated that Prom had 17 kilograms of pseudoephedrine powder in his bag, and Russell had 15 kilograms of pseudoephedrine powder in his bag – a total of 32 kilograms (gross) of pseudoephedrine powder. The value of that pseudoephedrine, based on an estimate of $50,000.00 per kilogram (with a purity of approximately 70 per cent) was about $1,600,000.00.

26. [38]

    On 9 March 2012, D Harb, Cranney, Valsamakis and Lamella all commenced the morning shift at SIA. Cranney was an acting Australian Customs Service (“ACS”) Level 3 officer, responsible for the management of a number of teams and Valsamakis was the acting ACS Level 2 officer in the ABS team. Lamella was rostered to work in the Secondary Examinations area in the “back of hall”.

27. [39]

    Valsamakis was responsible for ensuring that the cameras in the ABS room were directed away from D Harb. According to the Crown case, Cranney was responsible for ensuring that other areas of the ACBPS (the Control Room and the Business Group) weren’t investigating the couriers and the Thai Airways flight; and, Lamella was responsible for liaising between the SIA personnel and Napoli.

28. [40]

    Thai Airways flight TG475 arrived at SIA at about 7:15am. Lamella and D Harb communicated via their burn phones. As planned, D Harb located the couriers’ bags, put them inside a baggage can and stored them in an “out of the way” area.

29. [41]

    Huynh and Napoli communicated about the collection and delivery of the couriers’ bags. During these calls, Huynh indicated that he would be communicating with a third person about the collection of the pseudoephedrine.

30. [42]

    Between 8:21am and 8:28am, Cranney called Lamella and Valsamakis and arranged to meet them for a coffee. When the three met, they discussed various topics relating to the importation, including whether it had gone well and when they would be getting paid. During that morning, both Valsamakis and Cranney, at different times, had provided Lamella with information about an ABS operation on a flight next to the Thai Airlines flight and Lamella passed that information on to D Harb.

31. [43]

    Lamella and Napoli engaged in a series of coded text messages in which Lamella let Napoli know that D Harb was on his way with the bags of “gear” and that everything was progressing well.

32. [44]

    As planned, D Harb met Napoli in the SIA staff car park. Napoli retrieved the two bags from the Menzies vehicle, put them in the white Toyota Corolla Hatchback he was driving and drove away. Napoli called Huynh, and confirmed that everything was good. They then arranged to meet at Huynh’s residence. Later in the same morning of 9 March 2012, Napoli and Lamella exchanged coded text messages confirming that the importation had been successful.

33. [45]

    Between 16 and 22 March 2012, Valsamakis and Cranney communicated with each other, and Lamella, in code, about their dissatisfaction with the delay in being paid. Lamella in turn communicated with Napoli regarding the progress of the payments and the increasing irritation of the Customs officers in not having been paid.

34. [46]

    On 23 March 2012, Napoli attended Huynh’s residence at 125 Livingston Rd, Marrickville. Shortly after, Napoli sent Lamella a coded text message in which he indicated that he had the money. The pair then arranged to meet at the Sydney Marriott Hotel where Lamella was staying for the weekend. Napoli gave Lamella a plastic bag with $150,000.00 cash in it and informed Lamella that the money was the first half of the payment.

35. [47]

    Lamella subsequently divided up the cash so that there was $55,000.00 each for Cranney and Valsamakis and $20,000.00 for D Harb. On the evening of 25 March 2012, D Harb collected $20,000.00 from Lamella, being part of his payment for the importation. On the morning of 26 March 2012, Lamella met with Cranney and Valsamakis at work and gave them each a plastic bag containing $55,000.00 in cash. A few days after paying Cranney and Valsamakis, Lamella received an additional $100,000.00 in cash from Napoli which he divided between himself and D Harb.

36. [48]

    On 30 March 2012, Cranney, Valsamakis and Lamella met at a cafe in Beverly Hills. During this meeting they discussed, in general terms, how well the importation had gone and Cranney and Valsamakis asked Lamella not to forget that they were still owed $50,000.00. They also discussed organising the next importation as soon as possible, which was also a subject of discussion during subsequent meetings at the Terrace Bar at SIA.

37. [49]

    As both Cranney and Valsamakis were due to be transferred out of the ABS team in the months following the March importation, it was decided that they would try to do another importation as soon as possible. Valsamakis, Lamella and Cranney also discussed having Lamella transferred into the ABS room so that they could maximise their chances of the importations being successful. In the meantime, Lamella continued to meet with D Harb to identify potential dates for future importations based on their respective rosters. Lamella passed on the possible dates to Valsamakis, Cranney, Huynh and Napoli and also discussed with D Harb, Valsamakis and Cranney importing 3 bags per day, containing 20 kilograms each, so that they could make as much money as possible. It was ultimately agreed that they would import about 120 kilograms of pseudoephedrine split across three Thai Airlines flights arriving on the mornings of 4, 5 and 6 June 2012.

38. [50]

    During the planning phase for the June importations, Lamella met with Napoli and also separately with Huynh to check on their progress in organising couriers and Huynh’s progress in sourcing the pseudoephedrine. During these meetings Lamella provided advice about the methods of concealment and baggage screening processes in Australia and overseas and the courier profiles that were to be used. Lamella also met with Valsamakis and Cranney at various locations (the Terrace Bar at SIA; Flower Power at Kingsgrove; Tempe Reserve; and Valsamakis’ home) to inform them of the progress of the plans.

39. [51]

    Eventually, Napoli informed Lamella that Huynh had been able to source pseudoephedrine for the importations and the conspirators discussed the amount of money that would be made from the importations. Cranney and Valsamakis informed Lamella that they each wanted to be paid between $350,000.00 and $380,000.00 for the June importations. During their discussions about money, Cranney informed Lamella that he had been talking to people that he knew about the street price of pseudoephedrine and he thought that they were being underpaid.

40. [52]

    It was the Crown case that between 22 April 2012 and 9 May 2012, Huynh travelled to Vietnam for the purpose of sourcing pseudoephedrine for the importations. Whilst he was in Hong Kong on 6 May 2012, Huynh purchased a Blackberry mobile phone. By 9 May 2012, five couriers had been recruited in Queensland for the purpose of travelling to Vietnam and importing the pseudoephedrine. On 21 May 2012, Prom booked 5 business class return tickets for the couriers to travel to Ho Chi Minh City, via Bangkok, with Thai Airways – all departing on 28 May 2012.

41. [53]

    On 22 May 2012, Valsamakis and Cranney exchanged a series of text messages in which Valsamakis informed Cranney that he had spoken to senior personnel about extending his stay in the ABS team. Around this time, Cranney told Valsamakis that he would speak to a senior Customs officer about getting Lamella transferred into the ABS room to support him during the importations. Cranney subsequently recommended to Michael Mowbray (“Mowbray”), an ACS Level 3 supervisor, that Lamella be transferred into the ABS room for a 5 week period, commencing in late May 2012 and finishing just prior to a planned overseas trip from 2 July 2012. On the basis of Cranney’s recommendation, ACS Mowbray decided to rotate Lamella into the ABS team at this time.

42. [54]

    On about 26 May 2012, whilst working in the ABS room at SIA, Valsamakis became aware that a baggage handler named Chris Weeden (“Weeden”), who was often in the company of D Harb, was under investigation. Valsamakis subsequently informed Lamella of the investigation into Weeden, and Lamella informed Cranney. According to the Crown case, Lamella and Cranney agreed that Weeden could be used as a distraction from their importations and as a diversion in any investigations.

43. [55]

    On 28 May 2012, Huynh departed Australia for Vietnam. The five couriers booked to travel to Vietnam from Sydney on this date did not present for their Thai Airways flight as the pseudoephedrine to be imported between 4 and 6 June 2012 was not ready.

44. [56]

    During late May/early June 2012, Lamella met Napoli on a number of occasions to communicate with Huynh, who was in Vietnam, and to co-ordinate the final details in relation to the planned importations. During these meetings they discussed how much “gear” should be in the bags and how they should be packed; they confirmed the number of couriers who were travelling, the dates on which the importations would take place and the flights that would be used; and they discussed where Napoli would collect the couriers’ bags from D Harb. Napoli provided Lamella with the couriers’ names and details and with a description of the suitcases that the couriers would be using. Lamella subsequently passed this information onto D Harb and Valsamakis. During this time, Cranney and Valsamakis would also communicate about whether it was necessary to meet with Lamella.

45. [57]

    On 1 June 2012, the five couriers each purchased new Thai Airways Business class tickets to Ho Chi Minh City, Vietnam. They were booked to return to Australia on three separate flights, on 4, 5 and 6 June 2012. Prior to departing Australia each of the couriers had been provided with a large silver hard sided suitcase to use for the importation.

46. [58]

    On the morning of 4 June 2012, Valsamakis and Lamella were working in the ABS team. Cranney, who was the team leader of the floor area of the Arrivals Hall, was responsible for passenger targeting and assessment. D Harb was working as a baggage handler.

47. [59]

    Valsamakis and Lamella were operating the CCTV cameras in the ABS room from about 6:00am so that they were able to control the images appearing on the CCTV cameras, and (with the exception of some fixed cameras in the basement) keep the ABS cameras away from anything to do with the unloading of the Thai Airways flight.

48. [60]

    Thai Airways flight (TG475) arrived with the couriers Marlon Hikaiti-Paul (“Hikaiti-Paul”) and Levi Ratahi (“Ratahi”) on board. Both had packed their checked-in luggage (the silver suitcases) in Ho Chi Minh City with packages containing pseudoephedrine powder designed to look like food. It is estimated that both couriers had about 17 kilograms of pseudoephedrine powder in each of their bags – a total of about 34 kilograms of pseudoephedrine powder. The value of that pseudoephedrine, based on an estimate of $50,000.00 per kilogram (with a purity of approximately 70 per cent) was about $1,700,000.00.

49. [61]

    Hikaiti-Paul and Ratahi left SIA without collecting their checked-in silver suitcases, which were retrieved from the flight by D Harb and stored in an out of the way area. Later, D Harb collected the couriers’ suitcases and, using a work vehicle, drove out of SIA to the pre-arranged meeting point where he delivered the bags to Napoli. During the morning Lamella and Napoli and Lamella and D Harb, had communicated with each other by phone regarding the delivery of the bags.

50. [62]

    Whilst the Thai Airways flight was being unloaded, Cranney called Lamella (who remained in the ABS room with Valsamakis) to discuss the fact that the majority of the ABS team had been diverted away from the ABS room to deal with someone having stolen some property from a duty-free shop. Later that morning, Cranney, Valsamakis and Lamella met for a coffee and while they were together, Lamella informed them that the importation had been successful. That night Lamella and Napoli met to discuss the success of the importation that was to take place the following day.

51. [63]

    On the morning of 5 June 2012, Valsamakis and Lamella were working in the ABS team, Cranney was working as a supervisor in the Customs Arrivals Hall, and D Harb was working as a baggage handler.

52. [64]

    Lamella and Valsamakis were both involved in monitoring the CCTV cameras in the ABS room between 6:00am and 8:00am. During this time they kept the cameras directed away from the unloading of Thai Airways flight and focussed on a Cathay Airlines engineer.

53. [65]

    Thai Airways flight TG475 arrived at SIA with the courier Wayan Erlambang (“Erlambang”) on board. Erlambang’s silver suitcase contained a large number of packages of pseudoephedrine powder designed to look like food. It is estimated that Erlambang had 18 kilograms of pseudoephedrine powder in his bag. The value of that pseudoephedrine, based on an estimate of $50,000.00 per kilogram (with a purity of approximately 70 per cent), was about $900,000.00.

54. [66]

    Erlambang proceeded to exit SIA without collecting his checked-in luggage, which was retrieved from the flight by D Harb and stored in a baggage can.

55. [67]

    Later, D Harb delivered Erlambang’s suitcase to Napoli at Tempe. During the morning, Lamella, Napoli and D Harb communicated with each other by phone regarding the delivery of the bags. At about 11:10am, Cranney, Lamella and Valsamakis had a coffee together, and when they met, Lamella informed them that the importation had been a success.

56. [68]

    On the morning of 6 June 2012, Valsamakis and Lamella each again commenced work in the ABS team. Cranney was working as a supervisor in the Customs Arrivals Hall. D Harb was working as a baggage handler.

57. [69]

    At 5:05am, Cranney sent both Valsamakis and Lamella a text message asking them to meet for a coffee. When Lamella and Valsamakis met Cranney, there was another Customs officer present (ACS Wah Dao) who informed them about a Customs investigation that was underway in relation to two passengers who had not collected their luggage from a flight, and a baggage handler who had been removing luggage from flights.

58. [70]

    On returning to the ABS room, Lamella and Valsamakis were informed by S Farr that the ABS team would be conducting a containment exercise in relation to the Thai Airways flight which was arriving that morning. This involved retrieving any luggage that matched the appearance of the luggage that had not been collected by the first two couriers on 4 June 2012. Valsamakis and Lamella volunteered to find the luggage.

59. [71]

    Between 5:56am and 5:59am, Cranney and Lamella exchanged a number of text messages about meeting up. Lamella does not recall meeting Cranney at this time. However, Valsamakis recalls that at about this time, he and Cranney met either outside the Customs Secure Work Area or in one of the corridors at SIA. Cranney told him that he and Lamella needed to take care of the situation in “any shape or way possible”.

60. [72]

    The Thai Airways flight from Ho Chi Minh City (TG475) arrived at SIA at about 7:15am. Lamella and Valsamakis attended the baggage area, located the couriers’ two silver suitcases and Valsamakis removed the airline bag tags from each of the bags in an unsuccessful attempt to remove identifying material from the bags. Lamella and Valsamakis then placed the suitcases on the conveyer belt to be sent to the baggage hall where the couriers had been detained.

61. [73]

    The two couriers, Peter Garcia (“Garcia”) and Sebastian Musa (“Musa”), disembarked from the flight and were subsequently detained and arrested. Forensic examination of their suitcases revealed that they both contained a total of 28.29 kilograms of pure pseudoephedrine (40.7 kilograms gross) concealed within a total of 24 packages designed to look like food. The value of that pseudoephedrine, based on an estimate of $50,000.00 per kilogram (with a purity of approximately 70 per cent) was about $2,000,000.00.

62. [74]

    It is estimated that 28.29 kilograms of pure pseudoephedrine is capable of producing at least 19 kilograms of high-grade methylamphetamine hydrochloride. It is further estimated that the wholesale value of that amount of methylamphetamine would be about $4,750,000.00 (based on $250,000.00 per kilogram) and the street value would be about $15,200,000.00 (based on $800.00 per gram).

63. [75]

    That afternoon, Valsamakis, Cranney and Lamella met at the Flower Power Nursery, Kingsgrove. At this meeting they discussed the fallout from the detection of the importation. Lamella indicated to Valsamakis and Cranney that they may have to “take a bit of a hit” on the amounts that they would be paid as about 40 kilograms of “gear” had been seized, but both Valsamakis and Cranney indicated that they still expected to be paid the agreed amount.

64. [76]

    Between about 7 June 2012 and 28 June 2012, Valsamakis and Cranney communicated with each other, and Lamella, again in code, about being paid. Lamella in turn communicated with Napoli regarding payment. During this time, the Customs officers met and communicated about when and how much they would be paid. Valsamakis and Cranney pressured Lamella for payment.

65. [77]

    Eventually on the evening of 28 June 2012, Napoli transferred a plastic bag containing a large amount of cash into Lamella’s vehicle in Lamella’s street. Lamella and Valsamakis sat in Lamella’s car and divided up the cash. They had agreed to short change Cranney by taking an extra $5,000.00 each, which would result in Lamella and Valsamakis each receiving $100,000.00 and Cranney only $85,000.00. After splitting the money, Valsamakis left with his $100,000.00. D Harb then collected his payment of about $70,000.00 from Lamella.

66. [78]

    After communicating via mobile phone, Cranney drove to Lamella’s home, met with Lamella in his street and received a plastic bag containing $85,000.00 in cash. Cranney subsequently delivered the bag of cash to his brother G Cranney at a pre-arranged location in western Sydney.

67. [79]

    On 30 June 2012, at 10:39am, Cranney called NIB and paid his health insurance 12 months in advance at a cost of $1,169.04. At 3:15pm, Cranney paid $3,000.00 ($2,600.00 being paid in cash) for a new TV, dishwasher and refrigerator at Clive Anthonys, Castle Hill. Analysis of Cranney’s financial records reveals that he had access to cash amounts from unknown sources between 1 January 2012 and 30 March 2012, and from 1 June 2012 to 30 December 2012. Most notably, for the month of June 2012 he had access to unknown source funds of $8,820.50, for July 2012 $6,300.00 and for August 2012 $2,882.25.

68. [80]

    After arriving back in Australia on 8 June 2012, two days after the failed importation, Huynh departed Australia again on 2 July 2012 and did not return until 28 August 2012. During this period, large amounts of cash were deposited into his bank accounts.

69. [81]

    Between early July 2012 and Lamella’s arrest on 17 December 2012, Cranney, Valsamakis and Lamella communicated and met to discuss the ongoing police investigation that was being undertaken in relation to their importations; the arrest of Paul Katralis and J Harb in relation to another importation conducted on 18 August 2012; and, the outstanding money for the June importations. During the course of these discussions, Cranney indicated to Valsamakis that he was unhappy about being underpaid and that he expected it to be rectified. Cranney warned Lamella that S Farr was going to speak to him about the relationship between J Harb and D Harb. Cranney raised with Valsamakis the prospect of doing another importation when Valsamakis returned from leave.

70. [82]

    On 17 December 2012, Lamella was arrested and charged in relation to his involvement in importations conducted with J Harb in 2009 and 2010. On 7 February 2013, Lamella provided an induced statement to the police that detailed his involvement with Valsamakis, Cranney, D Harb, Huynh and Napoli in the importations of pseudoephedrine into Australia conducted between December 2011 and 6 June 2012. Lamella subsequently surrendered a total of $39,244.00 in cash seized by the Australian Federal Police (“AFP”) during searches of his residence and the residence of his cousin.

71. [83]

    On 12 February 2013, Valsamakis was arrested by the AFP. He voluntarily participated in a recorded interview, in which he made substantial admissions regarding his involvement, and the involvement of Cranney, Lamella and D Harb in the importation of commercial quantities of pseudoephedrine into Australia between December 2011 and June 2012. On 14 and 21 February 2013, Valsamakis voluntarily surrendered a total of $110,400.00 in cash to the AFP. On 7 May 2013, Valsamakis provided a sworn statement to the police that detailed his involvement with Lamella and Cranney in the importations of pseudoephedrine into Australia conducted between December 2011 and 6 June 2012.

72. [84]

    On 12 February 2013, Cranney, D Harb and Napoli were also arrested by the AFP. Cranney declined to be interviewed and at no stage has he provided any assistance to the authorities in the investigation of this or any other matter. No cash has been surrendered by or seized from Cranney.

73. [85]

    On 14 October 2013, Huynh was arrested by the AFP. Huynh declined to be interviewed and at no stage has he provided any assistance to the authorities. No cash has been surrendered by or seized from Huynh.

Cranney’s case

1. [86]

   No evidence was called on behalf of Cranney. It was his case that there had indeed been a conspiracy to import more than the commercial quantity of pseudoephedrine into Australia in December 2011, March 2012 and June 2012, but he was not a part to it. The focus of Cranney’s case was that the evidence of Lamella, Valsamakis and to a lesser extent, D Harb that implicated him was inherently dishonest and unreliable.

Huynh’s case

1. [87]

   Huynh gave evidence, as did two other witnesses that were called in Huynh’s case, Steve Josevski (“Josevski”) and Quan Minh Chung (“Chung”). Exhibits relating to Huynh’s bank accounts and TAB winning tickets seized from his home during the execution of a search warrant were tendered (Exs 85, 86, 87 and 88).

2. [88]

   As will be seen from the following summary, Huynh gave evidence denying involvement in the alleged conspiracy in 2012. It was submitted by his trial counsel that whilst the Crown may have created suspicion about Huynh’s involvement in the 2012 importation, it was not sufficient to prove the charge beyond reasonable doubt.

3. [89]

   Between 2011 and 2012 Huynh lived in Marrickville with his father and, at times, his grandmother. His mother lived in Vietnam.

4. [90]

   Huynh met Napoli about 20 years ago and had hung around him for about 10 to 12 years. He met J Harb through Napoli and had only known him since about early 2010. He also met Lamella through Napoli in early 2011.

5. [91]

   In about 2010, Napoli told Huynh that he had been robbed of “pseudo” tablets from his home by six to seven men, who had grabbed him off the street when Napoli was walking his dog. Napoli told him that he had been paid $5,000.00 by J Harb to hold onto two suitcases. Subsequently, Huynh was present when J Harb came to see Napoli and told him that he owed J Harb $700,000.00 for what had been stolen from him.

6. [92]

   Huynh said that he had met Lamella, together with Napoli and two other men he did not know, at a Korean BBQ restaurant in Strathfield in early 2011. This was the first time Huynh had met Lamella. He denied discussing importing pseudoephedrine with Lamella.

7. [93]

   The next time Huynh met Lamella was out the front of Napoli’s house, about two to three months later. Lamella and Napoli had a conversation but he wasn’t a part of it and only said “hi” to Lamella at this time.

8. [94]

   In mid-2011, Huynh went to the Pine Inn with ‘Fred’ Faraj Ayoub (“Ayoub”), who he had known for years, initially meeting him through Ayoub’s sister. Some time prior to the meeting at Pine Inn, Huynh had a conversation with Ayoub at his sister’s house in Leichhardt and explained how Napoli had been robbed and owed J Harb three quarters of a million dollars. Ayoub told Huynh to tell Napoli that he could sort it out for him, but that he wanted something out of it.

9. [95]

   When Huynh went to the Pine Inn, he was asked by Ayoub to give him a lift to Burwood as Ayoub was going to see Napoli. Vince and Napoli were at the Pine Inn when they arrived. They were joined by Lamella and another “big Aussie bloke”. Napoli had a discussion with Ayoub away from Huynh. On the way back from the Pine Inn, Ayoub told Huynh that he and Napoli had agreed to go to China to sort out an import for Lamella. Huynh told Ayoub not to get involved with these people. Huynh only ever went to the Pine Inn once.

10. [96]

    Huynh said that he went to Hong Kong on 23 October 2011 because it was his mate, Eric Au’s, buck’s party. They had been friends for about 20 years. A running sheet and wedding table arrangements were tendered.

11. [97]

    Huynh denied that he sourced pseudoephedrine at any stage during his travel to Hong Kong, Macau and China and back to Australia for Napoli or Lamella.

12. [98]

    Huynh remembered meeting Lamella on lots of occasions but did not remember the dates. He agreed that between July 2011 and the end of December 2011 he had some telephone contact with Lamella and had met him.

13. [99]

    He said that it was around that period that Napoli came up with the idea that they could “bullshit” Lamella that he could get couriers for Lamella, because he was putting pressure on Napoli to pay the debt. Lamella had found out that Napoli “had paid” J Harb about $300,000.00 to $400,000.00, and that J Harb was supposed to pay Lamella some of that, but only gave him $5,000.00. Huynh was present when Lamella pressured Napoli, and told Napoli to pay Lamella directly.

14. [100]

    Due to Napoli’s financial difficulties, Huynh began to gamble for him, and Napoli would give Huynh’s winnings to Lamella to pay down the debt of about 200 or 300 thousand. Huynh testified that Lamella had some guys go around to Napoli’s house, who threatened him that if he didn’t pay up they were going to bash him. Napoli had come to Huynh’s house with tears in his eyes thinking he was going to get killed. Huynh told Napoli that he would do his best for him. Huynh told Lamella that he could organise couriers for him as a way of helping Napoli. He denied ever sourcing couriers for Lamella. Huynh said that he was present when Napoli was heavied by a couple of “Lebos” demanding money.

15. [101]

    Huynh confirmed that he had spoken on the phone to Lamella on 22 October 2011 (Ex 6A) and met with him on that day. At the meeting, Lamella asked Huynh to bring back cold and flu tablets from Hong Kong. Lamella said that if he helped Napoli out, he would be making money for himself. Huynh said he told Lamella that he was not interested.

16. [102]

    Huynh confirmed that he met Lamella on 10 November 2011 after he had returned from the buck’s party in Hong Kong. They had a discussion about Huynh trying to source couriers. He said that he was never really going to source couriers for Lamella.

17. [103]

    Huynh agreed that he sent the “[d]on’t forget. Got good news” text to Lamella on 28 December 2011. When asked did he know what he was referring to when he sent that message, Huynh replied (Tcpt, 25 May 2015, p 2392):

18. [104]

    Huynh agreed that he had a telephone conversation on 19 January 2012 with a Vietnamese speaking person, Binh’s friend, who asked him about “getting something from an aeroplane”. Huynh testified that he initially did not know what he was on about, then worked out that he was referring to “what Lamella could do”. He never rang the man back or got a SIM card (Ex 6A).

19. [105]

    Huynh explained that Binh was a mutual friend of his and Napoli’s. Napoli talked to Binh about the death penalty because Napoli was thinking about being a courier along with his sister.

20. [106]

    Huynh said that he met Lamella on 28 February 2012 outside Lamella’s home and that he was driving a ‘No Birds’ hire car at that time, as his VW Golf was in for service. Napoli had asked him for a lift to Lamella’s house. They discussed the importation of pseudoephedrine because Lamella wanted a lump sum from Napoli and he told Lamella to stop hassling Napoli for the money. He did not hear any discussions about couriers.

21. [107]

    He remembered meeting Lamella before that time. Lamella, he said, had an idea that they were trying to bullshit him about the couriers and sort of knew that they were playing games with him so that’s when he hit Lamella up for the big amount of money. Lamella said that “if you’re not going to get me couriers…you have to pay for it” (Tcpt, 25 May 2015, p 2396).

22. [108]

    Huynh agreed that Napoli had his hire car on the morning of 9 March 2012. Napoli had asked to borrow it for half an hour but didn’t tell him why. After that, one of “those Lebos” that had been to Napoli’s house arrived at Huynh’s home and demanded, on behalf of J Harb, that the payments be made faster. The “Lebo” asked Huynh to call Napoli for him because his phone was in the car and his mate had driven off with Napoli. The “Lebo” told Huynh what to say. Huynh then rang Napoli and passed on the message. He did not know that the message was about anything that was to be picked up from the airport or pseudoephedrine.

23. [109]

    Huynh confirmed that he sent the text message “[r]ing me as soon as you finish so I can let my mate know” (Ex 6A). The “Lebo” came back to Huynh’s and asked Huynh to ring Napoli again. Huynh then gave his phone to the guy, who went outside with it.

24. [110]

    Huynh denied ever giving Napoli any money for pseudoephedrine.

25. [111]

    Huynh said that his travel to Vietnam on 22 April 2012, returning on 9 May 2012, was so that he could pick up his grandmother, who was 87 years old, and had been taken to Vietnam by his sister.

26. [112]

    Whilst in Vietnam, Huynh found out that his mother had cancer. Huynh returned to Vietnam on 28 May 2012 to spend time with her, returning to Australia in early June 2012. Huynh denied that these trips had anything to do with sourcing pseudoephedrine.

27. [113]

    Huynh admitted to purchasing a Blackberry whilst in Hong Kong (Ex 66). That phone was for his father. Huynh denied ever using a Blackberry or other phone to contact Napoli whilst he was in Vietnam.

28. [114]

    Huynh used his winnings from a TAB sports bet to purchase a new VW Golf on 23 January 2012 for $39,495.40.

29. [115]

    Huynh said that the money in his Commonwealth and ANZ bank accounts came from his TAB and casino winnings. None of those funds came from involvement with pseudoephedrine importations.

30. [116]

    Huynh stated that 95 per cent of the TAB tickets seized from his home during the search warrant were winning tickets.

31. [117]

    Huynh agreed that he had bought SIM cards and used them in names other than his own. It was suggested to him that the reason for this was so that people would not be able to associate him with that number. He disagreed and said that he was just too lazy to set it up himself.

32. [118]

    Huynh did not work, but earned money from gambling.

33. [119]

    In relation to the mobile number ending in ‘901’, which was registered in the name of Monique Cole, Huynh stated that Napoli gave him a phone some time in December because Lamella requested him to. Huynh said he could have told his barrister this even though no questions were asked of Lamella about that. He denied that he got a new phone in December 2011 because he was ready to arrange for the supply of pseudoephedrine.

34. [120]

    Huynh agreed that he wouldn’t call someone who was hounding his friend Napoli for money “mate”, in relation to the text to Lamella “[d]on’t forget. Got good news”.

35. [121]

    Huynh stated that Napoli owed Lamella a balance of about $300,000.00 for pseudo but that it started at $700,000.00. Huynh said that he didn’t know how much pseudo the debt related to. He didn’t know how much was owed but at one stage J Harb was getting it from Napoli and then Lamella was. He didn’t know how much pseudo was stolen from Napoli.

36. [122]

    Huynh agreed that he had made all the telephone calls recorded and that he didn’t dispute any of the surveillance evidence. It was suggested that he always met Lamella and Napoli outside to avoid a listening device. He denied this and said that he did not know Lamella well which is why he did not invite him in.

37. [123]

    Huynh was present on the three occasions when men turned up to hassle Napoli for money. It was suggested that there were no calls between Napoli and Huynh to support his story. Huynh said there were phone calls where Napoli complained, but that they may not have been intercepted.

38. [124]

    It was suggested to Huynh that in all the phone calls involving him from September 2011, he never talked in detail about what he and the other person needed to meet up about. Huynh explained that because the other person didn’t discuss it, he didn’t ask.

39. [125]

    It was suggested that Huynh took Ayoub to the Pine Inn. He denied that.

40. [126]

    Huynh was asked why he continued to associate with Lamella in the second half of 2011. He said it was because Napoli had asked him to stall Lamella.

41. [127]

    Huynh was asked about Binh, his Vietnamese friend. He did not know his full name or address but had been to his house. Binh was the reason the man from Vietnam rang him asking about “getting it out” from aeroplanes. It was suggested that his response about not wanting to talk to this man was inconsistent with the transcript in which he had agreed to get a new SIM card. Huynh said that was how he reacted. He denied that he knew the man was ringing from Vietnam even though he said “I know” when the man told him “I’m over here I’m not over there”.

42. [128]

    It was suggested to Huynh that shortly after the call with Binh’s friend, he went to the phone shop to get a new SIM card, as recorded in a phone call with Napoli. Huynh denied that he got a new SIM card and could have been getting a recharge of credit.

43. [129]

    Huynh was asked about buying a new car in January, and whether it came with a three-year warranty. He agreed. It was suggested to him that his explanation, that he gave it to Bruno’s mate to fix up when it was under warranty, was made up to explain why he hired the white Toyota, which he denied.

44. [130]

    The surveillance footage from 28 February 2012 of the meeting between Huynh, Napoli and Lamella in Lamella’s street was played to Huynh. It was suggested that Lamella and Huynh were the ones talking to each other and not Napoli and Lamella. It was suggested that Huynh’s version of events was not consistent with the footage.

45. [131]

    Huynh denied that he had made up the whole story about the “Lebo” standover man knocking on his door at 7:55am in the morning.

46. [132]

    Huynh denied that he had lied about Napoli coming up with the idea to “bullshit” Lamella that they could get couriers, because Lamella was putting pressure on Napoli to pay the debt.

47. [133]

    Huynh was shown his bank account records (Ex 65). It was suggested, and he agreed, that he didn’t have much money in March 2012. It was suggested that he needed money at that time, which he denied. It was suggested that hocking a watch for $5,000.00, as recorded in an intercepted call, was inconsistent with having a win at the TAB of $70,000.00. He denied this.

48. [134]

    Huynh denied that all of the intercepted calls and text messages between mid-February and 9 March 2012 related to planning for the importation.

49. [135]

    Huynh denied that his meeting with Napoli on 23 March 2012 was about the payment for the March importation.

50. [136]

    Huynh agreed that during his trip to Hong Kong in April and May 2012, he purchased a Blackberry phone. It was suggested that he used the Blackberry phone to communicate with Napoli, which he denied.

51. [137]

    Huynh was asked how he funded his travel to Vietnam in April and May 2012. He answered that it was through TAB winnings of a couple of hundred thousand dollars. He was asked to point out the relevant deposit of those winnings. He said that he didn’t deposit them, he kept the money with friends.

52. [138]

    Huynh was asked why he didn’t have losing TAB tickets. He said he hardly ever lost that year. He was asked why he kept the winning tickets. He said “because if someone is going to ask you where did you get all this money from”.

53. [139]

    Huynh agreed, in relation to ex 79, that he used his mate’s name David Loi, as an e-mail account. He denied that this was in order to mislead people and said it was because he liked his privacy.

54. [140]

    Huynh agreed that he knew pseudoephedrine could be manufactured into the controlled drug, methylamphetamine, and that it could be sold at very high profits. He denied that he wanted a part of that and had joined in.

55. [141]

    Huynh stated that he did not know Prom, the courier for the March importation.

56. [142]

    Huynh stated that he only met with Napoli for “one minute” on 23 March 2012.

57. [143]

    Huynh stated that in February 2011, when he won $77,000.00 at the TAB, he didn’t cash it out but held onto the ticket.

58. [144]

    Josevski testified that he was a friend of Napoli’s, and saw him during 2011 and 2012. Josevski also knew Huynh.

59. [145]

    Surveillance footage from 24 November 2011 was played. Josevski recalled being present at Napoli’s house that day. Josevski, Napoli and Huynh talked about the normal things that mates talk about including training and the gym. They did not talk about importing anything into the country.

60. [146]

    Lamella was known to Josevski through Napoli. He described Lamella as an associate. On more than one occasion in 2011 Lamella asked him if he wanted to make some quick money. Lamella asked him to pick something up for him, but Josevski said “no”.

61. [147]

    On one occasion near Christmas 2011, three or four guys of Middle Eastern appearance turned up at Napoli’s asking for money. Napoli then told Josevski he was in trouble.

62. [148]

    Josevski said that he had never seen the three men who turned up at Napoli’s place before. He agreed that Huynh wasn’t there on that occasion. When he spoke to Huynh about the incident Huynh knew nothing about it.

63. [149]

    Chung gave evidence that he was a friend of Huynh’s and had known him for about four years. In October 2011, he, Huynh and others flew to Hong Kong and then Macau for Eric Au’s buck’s party, who was a mutual friend. The wedding was held, he thought, on 1 January 2012. Huynh was at the wedding.

64. [150]

    He said that whilst they were in Macau, Huynh and others went to China for the day shopping. He did not see anything purchased, but when they came back, they spoke about it.

Ground 5 (Huynh): His Honour’s directions to the jury were in error in failing to properly direct the jury as to what is required to conspire to commit an offence, one element of which requires proof that the person ‘intends to use’ or ‘believes that another person intends to use’ any of the substance to manufacture a controlled drug

1. [151]

   It is convenient to deal with these grounds together as they relate to the same issue. The applicants’ complaint is that the judge erred in directing the jury in relation to the proof necessary to find a conspiracy to commit an offence under s 307.11 of the Criminal Code.

2. [152]

   The applicants referred to s 307.11(b)(ii) of the Criminal Code which required proof that an accused believed that another person intended to use the imported pseudoephedrine to manufacture methylamphetamine, whereas the jury were directed by the judge that what was required was a belief that the pseudoephedrine would be used by someone to manufacture that controlled drug. As the misdirection concerned an essential element that the Crown was required to prove in order to establish count 2, the applicants submitted that there had been a miscarriage of justice.

3. [153]

   Ms Bashir, on behalf of Cranney, observed that, as to the offence of conspiracy found in s 11.5 of the Criminal Code, the participation in, or being a party to a conspiratorial agreement constitutes the physical element of the offence. As to the mental element, there needs to be proved a common intention that the unlawful offence that is the subject of the conspiracy occurs, and it is insufficient to prove an expectation that the offence will occur. On the offence of conspiracy, it was necessary for the Crown to show an intentional agreement to commit an offence contrary to s 307.11. It was argued that the section was directed to the importer’s belief of another person’s intention (at the time of the importation).

4. [154]

   Ms Bashir submitted that the “principal issue” was left to the jury by the judge in terms of whether the jury was satisfied that Cranney did or did not participate in the undisputed agreement involving Lamella, Valsamakis and others. Ms Bashir contended that the agreement that Lamella, Valsamakis and others were said to have participated in, on the basis that each of the participants believed “…that the substance would be used by someone in the manufacture…” of a controlled drug, did not establish the offence of conspiracy to commit the relevant s 307.11 offence.

5. [155]

   The applicants accepted that no objection was taken at trial regarding the judge’s directions and that leave was required to argue this ground pursuant to r 4 of the Criminal Appeal Rules.

6. [156]

   Ms Bashir submitted that the Crown bore the onus of proving the elements of the offence alleged against Cranney and that the misdirection concerned a central matter of proof which resulted in a miscarriage of justice. Accordingly, Ms Bashir submitted that leave should be granted under r 4 as there was a fundamental misunderstanding of the critical elements necessary in proof of the conspiracy offence by all trial counsel and the judge. Ms Bashir cited Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43 at [69]–[69], [73]–[75] (McHugh J) (“Krakouer”).

7. [157]

   Ms Bashir argued that a correct direction as to this element of the offence was necessary for a proper understanding of the evidence of Lamella and Valsamakis as to their own beliefs and intentions (and the absence of evidence of others) and additionally as to the intent to be established against Cranney. Furthermore, Ms Bashir submitted leave ought to be granted as the matter raised an important issue of construction concerning the Criminal Code.

8. [158]

   In written submissions advanced on behalf of Huynh, Mr Dhanji pointed out that at first instance in R (Cth) v Standen [2011] NSWSC 1046, James J specifically rejected a formulation of the mental element advanced by the Crown which was in terms almost identical to the judge’s directions in the present case. Mr Dhanji wrote that, assuming the jury was satisfied that Huynh was a party to an agreement to import pseudoephedrine, an inference may have been open that Huynh believed the substance would be ultimately used by someone to manufacture methylamphetamine. Mr Dhanji argued this was insufficient as a belief that another person “intends to use any of the substance to manufacture a controlled drug” requires a present intention on the part of some other person, although it is not necessary that the person be precisely identified.

9. [159]

   The Crown accepted that under s 301.11(b)(ii) proof was required that the accused believed that another person intends to use any of the substance to manufacture a controlled drug, and that his Honour’s direction did not correctly state the physical element of circumstances provided by the subsection. However, the Crown argued that the directions were sufficient and appropriately encapsulated what the Crown was required to prove in terms of the issues that were in dispute in the trial. The Crown submitted that Cranney at trial did not challenge the existence of a conspiracy of the type alleged in the indictment; namely a conspiracy to import a commercial quantity of pseudoephedrine, where the alleged co-conspirators intended to use or believed that another person intended to use any of the substance to manufacture a controlled drug. Cranney’s case at trial was that he was simply not part of the conspiracy.

10. [160]

    The Crown contended that although the judge’s directions did not state the element in the terms of the offence provision, there was no material difference in substance between the phrase used to direct the jury, “would be used to manufacture” and the words used in the offence provision, “intended to use…to manufacture”. The Crown said that the judge’s directions required that the Crown prove a present belief held by Cranney and at least one other party, at the time of entering into the agreement, as to a result they expected would be achieved by another (or others) in the future. An intention on the part of another (or others) to achieve that result was implicit in the directions given by the judge.

11. [161]

    It was put to the Court that the judge’s directions, on one view of it, imposed a higher threshold of proof upon the Crown. According to the judge’s directions, the Crown had to prove that not only did the applicant believe that another person (or persons) intended to use any of the pseudoephedrine to manufacture a controlled drug but that some other person (or persons) would act upon that intention in the event that pseudoephedrine was successfully imported. It was submitted in the circumstances of the trial and in the conduct of the cases for the applicants, there was no miscarriage of justice.

12. [162]

    In the event that the applicants were granted leave under r 4, the Crown nevertheless submitted that no substantial miscarriage of justice has occurred and the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) would apply. That question is to be answered having regard to all the circumstances of the trial including the strength of the prosecution case and the relative merits of the defence case. The impugned directions, the Crown argued, did not create a fundamental defect in the trial. The Crown contended that these directions neither had the effect of denying the applicant procedural fairness nor having some substantial part of his case decided by the jury. The applicants’ cases were that they were not involved in the conspiracy alleged, which was conceded to be one that was in existence. Given the issues in dispute at the trial and the way in which the applicants’ cases were conducted and put to the jury, the Crown submitted that the impugned directions did not occasion a substantial miscarriage of justice.

13. [163]

    In considering these grounds, regard must be had to the provisions of ss 11.5 and 307.11(1) of the Criminal Code as they were in 2011–2012.

14. [164]

    Section 11.5, relevantly, was as follows:

15. [165]

    Section 307.11 provided:

16. [166]

    Section 307.11 was amended by the removal of subs (1)(b) from 1 December 2015: Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015.

17. [167]

    The Criminal Code defines a “border controlled precursor” in s 301.6 as a “substance that is listed by a regulation as a border controlled precursor.” Section 5F of the Criminal Code Regulations 2002 (Cth) (“Criminal Code Regulations”) lists pseudoephedrine as a border controlled precursor in relation to s 301.6 of the Criminal Code. Methylamphetamine is a controlled drug: Sch 3 of the Criminal Code Regulations.

18. [168]

    Both the applicants and the Crown accepted that Hodgson JA correctly summarised the relevant elements required to establish count 2 in Standen v DPP (Cth) (2011) 218 A Crim R 28; [2011] NSWCCA 187 at [21], with the modification referred to in Standen v R (2015) 253 A Crim R 301; [2015] NSWCCA 211 at [420] (“Standen v R”).

19. [169]

    Hodgson JA (Adams and Hall JJ agreeing) said at [21]:

20. [170]

    In Standen v R, the Court (Bathurst CJ, Hoeben CJ at CL and McCallum J) agreed with Hodgson’s JA formulation but said at [420]:

21. [171]

    Before referring to the applicants’ complaints concerning the judge’s oral and written directions to the jury, it is important to record that his Honour assiduously sought the assistance of the Crown Prosecutor and the applicants’ trial counsel as to the correctness of his proposed directions. His Honour provided the parties with prepared written directions as to elements of the charges which his Honour supplemented with a written draft of his proposed summing-up. All of these documents contained the directions which the applicants now contend should not have been given. To say the least, it is indeed unfortunate that none of the trial counsel referred the judge to Hodgson’s JA summary of the relevant elements. Neither trial counsel for the applicants nor the Crown raised any objection to the proposed directions concerning the element of belief that the pseudoephedrine “would be used by someone to manufacture a controlled drug, in this case methylamphetamine” (SU 42).

22. [172]

    Turning to his Honour’s directions, his Honour provided to the members of the jury in the course of summing-up written directions that relevantly provided with respect to counts 1 and 2:

23. [173]

    During his summing-up, the judge relevantly said (SU 48):

24. [174]

    His Honour further directed the jury (SU 52):

25. [175]

    In respect of Huynh, his Honour said (SU 55):

26. [176]

    The fault element of the offence of conspiracy under s 11.5 of the Criminal Code is intention: R v LK; R v RK (2010) 241 CLR 177; [2010] HCA 17 at [141] (“R v LK”). Proof of intention to commit an offence requires proof of an accused’s knowledge of, or belief in, the facts that make the proposed conduct an offence: R v LK at [117]; Ansari v The Queen (2010) 241 CLR 299; [2010] HCA 18 at [59]. It was not the Crown case that any of the alleged conspirators intended to use the pseudoephedrine to manufacture a controlled drug. The Crown relied on s 307.11(1)(b)(ii) which provides for a belief on the part of an accused “that another person intends to use any of the substance to manufacture a controlled drug”.

27. [177]

    As the Crown accepts, his Honour’s directions as to count 2 were incorrect in respect of both Cranney and Huynh. It was incumbent upon the Crown to prove in respect of each applicant that:

    1. (1)

       he intentionally participated with any one or more of Lamella, Valsamakis, D Harb and others in the agreement in the first half of 2012 to import into Australia more than the commercial quantity of pseudoephedrine; and

    2. (2)

       he and at least one other person to the agreement did so, believing that another person intended to use any of the imported pseudoephedrine to manufacture methylamphetamine.

28. [178]

    Furthermore, the directions by the judge as to the existence of an agreement between Lamella, Valsamakis, D Harb, and others did not appropriately instruct the jury as to what was required to establish the offence of conspiracy under s 11.5 of the Criminal Code. It was necessary for the alleged conspirators to have intentionally entered into an agreement to commit the offence that was the subject of the agreement: R v LK at [141]; Jeyavel Thangavelautham v R [2016] NSWCCA 141 at [18] (“Thangavelautham”). Although it was not in dispute during the trial that there was an agreement between these persons to import the pseudoephedrine, with each of them believing that the substance would be used by someone in the manufacture of methylamphetamine, this was not the offence charged under ss 11.5 and 307.11 of the Criminal Code.

29. [179]

    The offence could not be established unless the Crown was able to prove that, at the time of their agreement to import more than the commercial quantity of pseudoephedrine, the alleged conspirators held the requisite belief; namely, that another person had the intention to use any of the imported pseudoephedrine to manufacture methylamphetamine. It was not necessary for the Crown to identify who the other person was. However, that does not mean that the alleged conspirators must have held the belief that another person would use the pseudoephedrine immediately upon its importation to manufacture the controlled substance. The terms of s 307.11(1)(b)(ii) do not provide for a temporal limitation to the intention of the other person. A belief that another person had the intention to use the pseudoephedrine to manufacture methylamphetamine in the future would be sufficient to establish this element of the offence.

30. [180]

    As neither of the applicants complained to the judge about the directions as to the elements of the offence, r 4 applies. Rule 4 is as follows:

31. [181]

    Emphasis was placed by Ms Bashir on what was said by McHugh J in Krakouer at [68] that “[a] prima facie miscarriage of justice occurs whenever a jury has convicted a person after the trial judge has given or failed to give the jury a direction that constitutes legal error”. As McHugh J explained, this was “because a trial marred by such an imperfection is prima facie an affront to the rule of law”. However, the majority (Gaudron, Gummow, Kirby and Hayne JJ) in Krakouer said at [23]:

32. [182]

    The relevant authorities concerning r 4 were helpfully summarised by Bathurst CJ in ARS v R [2011] NSWCCA 266 at [147]–[148]:

33. [183]

    The trial was conducted by the applicants’ counsel on the basis that there was a conspiracy as alleged by the Crown between Lamella, Valsamakis, D Harb and others including Garcia.

34. [184]

    As the judge told the jury, the applicants did not dispute that there was an agreement between these persons to import more than a commercial quantity of pseudoephedrine, each of these persons believing that the substance would be used by someone in the manufacture of methylamphetamine. The applicants’ cases were that they had not participated in the conspiracy alleged by the Crown.

35. [185]

    In the respective cases of each applicant, the contention was that the Crown had failed to prove beyond reasonable doubt the making of any agreement between the conspirators and the applicants to import pseudoephedrine into Australia. Unsurprisingly, there was no debate at trial as to whether Cranney or Huynh held the requisite belief that another person had the intention to use any of the imported pseudoephedrine to manufacture methylamphetamine.

36. [186]

    In my view, neither of the applicants were disadvantaged by the judge’s directions. His Honour’s charge to the jury required proof by the Crown of a belief that the pseudoephedrine would be used by someone to manufacture methylamphetamine. This imposed a higher onus upon the Crown than proof of a belief that another person intends to use the substance to manufacture the controlled drug. It required the jury to be satisfied beyond reasonable doubt of another matter. The Crown had to prove that not only did the applicant believe that another person (or persons) had the intention to use any of the pseudoephedrine to manufacture methylamphetamine but that other person (or persons) would act upon that intention in the event that the pseudoephedrine, the subject of the agreement was successfully imported.

37. [187]

    Having regard to the greater onus placed on the Crown by his Honour’s directions and the conduct of the applicants’ cases at trial, I am not satisfied that either applicant has lost a real chance or a chance fairly open of being acquitted.

38. [188]

    Although there was a misdirection, I am not persuaded that the trial was fundamentally flawed.

39. [189]

    Accordingly, I would refuse leave to argue these grounds.

Ground 2(a) (Huynh): the verdict was unreasonable because there was insufficient evidence that the applicant was a party to an agreement pursuant to which, at the time of the agreement, a person either intended to use any of the substance to manufacture a controlled drug or believed that another person intended to use any of the substance to manufacture a controlled drug

1. [190]

   The applicants submitted that the evidence did not establish that either themselves or any other conspirator at the time of participation either held an intention or believed an extant person or another party to the agreement intended to use the imported pseudoephedrine to manufacture a controlled drug.

2. [191]

   Ms Bashir argued that, taken at its highest, the evidence did not establish that Cranney, or any other alleged conspirator, at the time of participation, either held an intention themselves or believed an extant person or another party to the agreement “intends to use” the pseudoephedrine to manufacture a controlled drug.

3. [192]

   Ms Bashir contended that Lamella’s evidence that the imported pseudoephedrine “would be manufactured by someone else into methylamphetamine” amounted to no more than his expectation as opposed to his belief as to another’s intention in relation to the substance imported pursuant to each conspiracy: R v Trudgeon (1988) 39 A Crim R 252 (“Trudgeon”); Thangavelautham at [18]. Valsamakis’ evidence that Cranney had done “background hunting of prices… and found out that once the drug was manufactured it could be worth millions” was consistent with an expectation that the precursor would, at some unspecified time be used in the manufacture of controlled drugs

4. [193]

   It was further argued that the evidence of Valsamakis was consistent with a belief that the imported substance would be on-sold as opposed to manufactured. In particular, Valsamakis’ evidence that Cranney and himself were told by Lamella that they would be paid “once the pseudoephedrine had been sold” merely established that those parties believed the pseudoephedrine would be sold, and did not establish a belief as to the intended use of the precursor. Valsamakis’ evidence as to Cranney sourcing street prices was also said to be consistent with a belief as to sale rather than manufacture.

5. [194]

   Ms Bashir submitted that no evidence was given by D Harb and Garcia regarding their beliefs as to what would happen to the substance. It was submitted that the evidence of training within Customs that pseudoephedrine was an ingredient in making controlled drugs did not prove intent. Participation in an agreement to import pseudoephedrine was insufficient to satisfy the elements of the offence. While it may be sufficient to prove a conspiracy contrary to s 307.11 as it now exists, it was not sufficient proof of an offence under the section at the relevant time.

6. [195]

   Mr Dhanji contended that the Crown case did not directly address the element provided by s 307.11(1)(b) of the Criminal Code in any detail. The imprecision surrounding the Crown case in this regard was said to have ultimately led to a case in which there was no (or at least insufficient) evidence on which this element could be satisfied.

7. [196]

   Mr Dhanji pointed out that the Crown case at trial appeared to be that Huynh was a party to an agreement to which he believed another person would, ultimately, use the pseudoephedrine to manufacture methylamphetamine. Mr Dhanji argued that this was insufficient.

8. [197]

   Mr Dhanji submitted that a belief that another person “intends to use any of the substance to manufacture a controlled drug” requires a present intention on the part of some other person. Mr Dhanji contended that even if an inference was open that Huynh believed the substance would ultimately be used by someone to manufacture methylamphetamine, such an inference was insufficient to the meet the requirement.

9. [198]

   Mr Dhanji submitted that the issue was compounded because Huynh was charged with a single continuing conspiracy. It was the Crown case that there were four importations, but the Crown did not state when Huynh held the relevant belief, whether it was at some time during the period of the conspiracy, or whether the belief was held only in relation to one or more importations.

10. [199]

    Mr Dhanji submitted that it was the Crown case that Huynh’s involvement in the alleged conspiracy was to source pseudoephedrine from overseas and to source the couriers. He argued that in these circumstances, the Crown suffered a clear difficulty in proving that Huynh was otherwise involved in the onshore aspects of the alleged conspiracy and, as a consequence, believed another person at the time of the conspiracy held the requisite intention with the respect to the use of the substance to manufacture a controlled drug.

11. [200]

    In oral submissions, Huynh contended that there was no evidence other than that from Lamella that he was involved with the June importations. Huynh submitted that the only matter that implicated him in the June importation was that he was in Vietnam at the time. Huynh admitted that was “highly suspicious” but put to the Court that if that was the only matter the Crown was relying on, then the Crown did not negate a possibility consistent with innocence.

12. [201]

    The relevance of this argument is not confined to Ground 2(a) (Huynh) as it is a submission that also relates to Ground 2(b) (Huynh).

13. [202]

    The Crown’s submission was that given the significant quantities of the pseudoephedrine that were intended to be imported and were successfully imported, the arrangements for the immediate transfer of the imported pseudoephedrine to others following successful extraction at the airport, and the significant amounts of money expected and received by the co-conspirators following successful importations, it was open to the jury to infer that each of the applicants and at least one other party to the agreement believed that some other person intended to use the pseudoephedrine to manufacture methylamphetamine.

14. [203]

    In Sio v R (2015) 249 A Crim R 533; [2015] NSWCCA 42, Leeming JA summarised the legal principles applicable to an unreasonable verdict ground of appeal. His Honour said at [40]:

15. [204]

    In Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113], Hayne J (with whom Gleeson CJ and Heydon J agreed) emphasised that the question is whether the jury must, as distinct from might, have entertained a reasonable doubt about the applicant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

16. [205]

    Where the sole ground of appeal is that the verdict is unreasonable or cannot be supported, and directions given by the trial judge are unchallenged, the weight given to the jury’s advantage of seeing and hearing the witnesses called at trial may be considerable: R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]–[66]. The position may be otherwise where the jury has been misdirected: Popovic v R; Hristovski v R; Bubanja v R; and Koloamatangi v R [2016] NSWCCA 202 at [278]. However, as the judge’s misdirection in the present appeal did not disadvantage the applicants, the weight to be attributed to the jury’s verdicts has not been lessened.

17. [206]

    Ms Bashir placed reliance on the decisions of the Court of Criminal Appeal in Trudgeon and Thangavelautham. Neither of these cases concerned the provisions ss 11.5 and 307.11(1) of the Criminal Code. Trudgeon involved a charge of conspiring to supply a prohibited drug under ss 4, 32(4) of the Poisons Act 1966 (NSW). Thangavelautham was charged with an offence of conspiracy to defraud. The accused in each case was alleged to have been a party to the particular conspiracy. The principle that arises from these cases is that for an offence of conspiracy to be made out, it is necessary for the conspirators to have the intention to commit the offence in question. In Trudgeon, Gleeson CJ said at p 256:

18. [207]

    Furthermore, as Bathurst CJ said in Thangavelautham at [18]:

19. [208]

    In the present appeal, the question is not whether the unknown person was a party to the conspiracy. The principal question is whether, in respect of each applicant, it was open to the jury to be satisfied beyond reasonable doubt that the applicant and at least one other person intentionally participated in the agreement believing that another person had the intention to use the pseudoephedrine to manufacture methylamphetamine.

20. [209]

    Other than the submission that an expectation does not amount to a belief under s 307.11(1)(b)(ii) of the Criminal Code, there was no debate as to the state of mind necessary to meet the requirement of “believes that another person intends” in the subsection. It may be confidently stated that mere suspicion of the other person’s intention is not enough to amount to belief. Conversely, belief does not require actual knowledge. In George v Rockett (1990) 170 CLR 104; [1990] HCA 26, in considering s 679 of the Criminal Code 1899 (Q.) said at p 116:

21. [210]

    See also more recently Prior v Mole [2017] HCA 10 at [24].

22. [211]

    In the case of each applicant, the Crown pointed to the following evidence in support of the Crown’s submission that it was open to the jury to be satisfied beyond reasonable doubt of the applicants’ guilt:

23. [212]

    The Crown’s summary is to be approached with caution. Although most of the evidence had been admitted against both of the applicants, some of the evidence had been admitted only against Cranney and some only against Huynh. The judge carefully directed the jury that they were obliged to exclude from their deliberations, concerning a particular accused, the evidence that had been admitted only against the other accused. His Honour went on to say (SU 8–9):

24. [213]

    The jury was instructed to consider the case against each of the applicants separately. It is unnecessary to detail here all of the evidence that was not admissible against either Cranney or Huynh.

25. [214]

    When considering the case against Cranney, the evidence that the jury was obliged to put out of their minds included the evidence of Huynh’s participation in a failed importation of pseudoephedrine from China in mid-2011, Huynh’s evidence that he knew that pseudoephedrine could be made into methylamphetamine and sold at very high profits, his use of the term “pseudo” and the large payments made into Huynh’s bank account.

26. [215]

    When considering the case against Huynh, the evidence that the jury was obliged to put out of their minds included the Crown case against Cranney in respect of counts 1 and 3, and the evidence of the forensic accountant as to Cranney’s spending patterns and access to cash.

27. [216]

    The jury was entitled to accept the evidence of the Crown witnesses and to consider their evidence not in a piece-meal way but in combination.

28. [217]

    The jury was not obliged to accept Huynh’s evidence.

29. [218]

    I would disagree with the argument advanced by Huynh that the evidence was insufficient for the jury to be satisfied beyond reasonable doubt of his involvement in the June importations.

30. [219]

    It was Lamella’s evidence that he had discussed with both Huynh and Napoli the requirements for selecting couriers early on in the planning of the June importations. This, he said, was probably around April. He testified that Napoli told him that he was communicating with Huynh through a Blackberry mobile phone. Lamella said that Napoli showed him the messages being sent to Huynh and Huynh’s replies. In cross-examination, Lamella denied that Huynh did not have direct physical contact with him after 28 February 2012.

31. [220]

    Independent evidence supporting Lamella’s testimony and implicating Huynh in the June importations includes:

    1. (1)

       Huynh’s purchase of a Blackberry mobile phone in Vietnam on 6 May 2012; and

    2. (2)

       the following flight bookings: on 28 May 2012, Huynh checked into a flight and departed Sydney for Ho Chi Minh City. Garcia, Musa, Hikaiti-Paul, Ratahi and Erlambang did not depart on Thai Airways flight as booked. On 1 June 2012 Ratahi and Hikaiti-Paul checked in and departed for Ho Chi Minh. On 2 June 2012, Garcia, Musa and Erlambang checked in and departed for Ho Chi Minh City. On 4 June 2012, Ratahi and Hikaiti-Paul returned to Sydney. On 5 June 2012, Erlambang returned to Sydney. On 6 June 2012, Musa and Garcia returned to Sydney. On 7 June 2012, Huynh checked in to his return flight to Sydney. On 8 June 2012, Huynh returned to Sydney; and

    3. (3)

       the deposits totalling $87,500 into Huynh’s bank account during the period 4 July 2012 to 14 August 2012.

32. [221]

    Another argument advanced by Huynh in oral submissions was that the Crown Prosecutor had not put a date on Huynh’s knowledge that pseudoephedrine could be used to manufacture methylamphetamine and at the time the questions were asked by the Crown Prosecutor, he had heard the whole of the Crown evidence. Huynh’s submission was that he did not have that knowledge prior to the trial. Included in the Crown Prosecutor’s cross-examination of Huynh is the following (Tcpt, 26 May 2015, p 2536):

33. [222]

    It is clear from the Crown Prosecutor’s questions that he was referring to Huynh’s past knowledge and not his knowledge at the time of cross-examination. I would reject this argument.

34. [223]

    There was ample evidence from which the jury could conclude that each of the applicants had agreed with Lamella, Valsamakis, D Harb and Napoli to import more than the commercial quantity of pseudoephedrine into Australia.

35. [224]

    Having made my own independent assessment of the whole of the evidence against Cranney which included Cranney’s experience as a Customs officer; the knowledge that Cranney had as a Customs officer regarding pseudoephedrine being used as an ingredient in the making of methylamphetamine; the sophistication of the arrangements to successfully import and transfer the pseudoephedrine at SIA; Cranney’s “background hunting” which he related that once the drug was manufactured it could be worth millions; the amount of pseudoephedrine powder imported by Prom and Russell on 9 March 2012 – an estimated 32 kilograms with an estimated value of $1,600,000.00; the large amounts of cash that Cranney received from Lamella for the March importation; Cranney’s discussions and text messages concerning large amounts of money, including the advice to Lamella that he wanted to be paid between $350,000.00 and $380,000.00 for the June importations; the (about) 34 kilograms of pseudoephedrine powder imported by Hikaiti-Paul and Ratahi on 4 June 2012 with an estimated value of about $1,700,000.00; the estimated 18 kilograms of pseudoephedrine powder imported by Erlambang on 5 June 2012 with an estimated value of about $900,000.00; the 28.29 kilograms of pure pseudoephedrine imported by Garcia and Musa on 6 June 2012 with an estimated wholesale value of about $4,750,000.00; Mr Rositano’s evidence of Cranney’s spending patterns and his access to cash, and Lamella’s evidence of his belief that the imported pseudoephedrine would be manufactured into methylamphetamine, it was open to the jury to be satisfied beyond reasonable doubt that Cranney and his co-conspirators believed that some other person intended to use the imported pseudoephedrine to manufacture methylamphetamine.

36. [225]

    Having made my own independent assessment of the whole of the evidence against Huynh, which included the text messages exchanged between Lamella and Huynh in December 2011; Lamella’s evidence of his conversation with Huynh in January 2012 during which Huynh informed Lamella that he had sourced pseudoephedrine in Vietnam; Lamella’s meetings with Huynh and Napoli in January and February 2012; the intercepted phone calls between Huynh and Napoli between 18 and 25 February 2012 and intercepted text messages; the trips made by Prom and Russell to Ho Chi Minh City; the communications between Huynh and Napoli about the collection and delivery of couriers’ bags; the estimated amount and value of the pseudoephedrine powder imported by Prom and Russell; the meetings between Napoli and Huynh at 125 Livingston Road, Marrickville; Lamella’s evidence of his discussions, probably around April 2012, with Huynh and Napoli concerning the requirements for selecting couriers; Lamella’s evidence of his conversation with Napoli that he was communicating with Huynh through a Blackberry mobile phone and of seeing messages between Napoli and Huynh, Huynh’s purchase of a Blackberry mobile phone in Vietnam on 6 May 2012, the flight movements detailed at [218(2)] above; the estimated amount and value of the pseudoephedrine powder imported by Hikaiti-Paul and Ratahi on 4 June 2012, by Erlambang on 5 June 2012 and the pure pseudoephedrine imported by Garcia and Musa on 6 June 2012; the large payments into Huynh’s bank account which included deposits totalling $87,500.00 during the period 4 July 2012 to 14 August 2012 inclusive, and Huynh’s evidence of his knowledge of pseudoephedrine, it was open to the jury to be satisfied beyond reasonable doubt that Huynh and his co-conspirators believed that some other person intended to use the imported pseudoephedrine to manufacture methylamphetamine.

37. [226]

    It follows that Ground 3 (Cranney) and Ground 2(a) (Huynh) have not been made out.

38. [227]

    It remains for consideration, however, whether the verdicts were unreasonable because they failed to establish a single conspiracy as opposed to separate conspiracies. This is the subject of Ground 4 (Cranney) and Ground 2(b) Huynh.

Ground 4 (Huynh): In the alternative to ground 3, the charge was bad for duplicity

1. [228]

   It is convenient to deal with these grounds of appeal together as the main question raised is whether the Crown case in respect of count 2 established one single conspiracy or involved two distinct conspiracies.

2. [229]

   Ms Bashir submitted that the evidence failed to establish the single conspiracy alleged by the Crown. It was submitted that on the evidence there were two conspiracies; one relating to the March importation and one relating to the June importations.

3. [230]

   It was contended that on the Crown case there was an agreement that had as its object the importation on 9 March 2012, and this did not involve a continuing agreement to import further quantities of pseudoephedrine after that date.

4. [231]

   Ms Bashir argued that the second conspiracy was an agreement that had as its object an offence contrary to s 307.11 to import a substance on consecutive days in June 2012. Although some of the parties to the second conspiracy were common to the first, that fact did not make the object common amongst all the named conspirators. It was submitted that by s 311.16(b), the June importations could be rolled into a single offence, but the March importation could not, as more than 30 days separated it from the other importations.

5. [232]

   Ms Bashir further submitted that the Crown’s argument that “there was a central agreement” was not available on the evidence, and even if it were, such an agreement did not suffice to meet the requirement of holding a belief as to the intention of another to use the pseudoephedrine to manufacture a controlled drug.

6. [233]

   In oral argument, Ms Bashir put to the Court that Cranney was not at work between 3 and 28 January 2012, that the evidence of Valsamakis and Lamella did not establish an overarching single conspiracy and that the evidence pointed to two separate conspiracies.

7. [234]

   Mr Dhanji argued that it was made plain in the Crown’s opening and closing addresses that the Crown’s case was that there was a single agreement spanning the four importations in 2012. However, the evidence suggested the existence of two separate conspiracies at different times, involving different objects and different participants. Mr Dhanji pointed out that the parties involved in the March 2012 importation were not co-extensive with the parties involved in the June 2012 importations. He pointed out that whilst there was evidence that Lamella, Valsamakis, Harb, Napoli and Prom were involved in each importation, the other persons named in the indictment were involved only in the June importations.

8. [235]

   It was submitted that the involvement of different people in the March and June importations was evidence confirming that the importations were the subject of different agreements entered into by different parties.

9. [236]

   Mr Dhanji contended that it was necessary to prove that the named co-conspirators were each party to a single agreement spanning both importations as alleged by the Crown on the basis that, whilst some of those conspirators joined after March 2012, they knew of and approved of the original agreement. It was not sufficient to establish that some of the co-conspirators were attached to agreements relating to the March or June importation and not a single overarching agreement covering both. Nor was it sufficient to prove simply an awareness of either the past acts or future intentions of others.

10. [237]

    On the alternative ground, Ground 4 (Huynh), Mr Dhanji argued that, if it was not necessary to direct the jury as submitted in respect of Ground 3 (Huynh) the charge was bad for latent duplicity. This argument was adopted by Cranney for Ground 6 (Cranney).

11. [238]

    The Crown submitted that although the crime is complete upon the formation of the agreement, together with the commission of at least one of the overt acts by a party to the agreement, the offence, continues so long as its objectives are being pursued by at least two parties to the conspiracy. Count 2 particularised the conspiracy offence as one that was committed between about 1 January 2012 and about 30 June 2012. The Crown submitted that even though the agreement had been formed and overt acts had occurred before the importations, the offence was not complete and numerous further overt acts were committed by the alleged conspirators, including the importations on 9 March and 4, 5 and 6 June 2012.

12. [239]

    The Crown contended that there was a single continuing criminal enterprise being pursued by a group of corrupt customs officers and their associates. Proof of that single continuing criminal enterprise did not rely upon the combination provisions of s 311.16 of the Criminal Code. The Crown submitted that the multiple completed importations were overt acts pursuant to which the single agreement was proven and they did not demonstrate that there were multiple conspiracies or the charge was duplicitous.

13. [240]

    Similarly, the different couriers at different stages did not mean that there was more than one conspiracy. The Crown pointed out that the plan formed by the first conspirators did not change and the objective remained the same throughout the period of the charge. The Crown argued that whilst other persons, such as the various couriers, entered and participated in the conspiratorial agreement at different stages, the single criminal enterprise remained the same throughout the period of the charge.

14. [241]

    The Crown put to this Court that the proof of each of the applicant’s guilt in respect of count 2 did not require that the Crown prove that the named 10 conspirators were each party to a single agreement spanning both importations. The Crown said that it was sufficient to establish that the particular applicant and at least one of the other name co-conspirators were party to the same agreement, in the terms required by ss 11.5(1) and 11.5(2) of the Criminal Code.

15. [242]

    The Crown argued that the charge was not bad for latent duplicity. The Crown’s case was that there was a single agreement and the judge’s directions made plain that in respect of count 2, the jury need to be satisfied beyond reasonable doubt that the particular applicant was a party to the agreement as charged in the indictment.

16. [243]

    The terms of count 2 (see [7] above) and the Crown’s opening address to the jury made it clear that the Crown case was that there was a single conspiracy between 1 January 2012 to 30 June 2012 which encompassed the March and June importations.

17. [244]

    The Crown told the jury (Tcpt, 13 April 2015, pp 15–16, 18):

18. [245]

    Neither of the applicants complained to the judge that more than one conspiracy was charged or that the evidence gave rise to latent duplicity in respect of count 2. Nor was anything said about his Honour’s failure to direct the jury that it had to be satisfied that the Crown had proved the single conspiracy alleged and not two separate conspiracies relating to the March and June importations. Accordingly, r 4 applies.

19. [246]

    The conspiracy alleged by the Crown extended over a period of six months. It is the Crown case that during that time each of the applicants was a party to the conspiracy which had the common design of importing pseudoephedrine into Australia and the four importations were carried out in accordance with that common design. On the other hand, the applicants contend that if the Crown case was to be accepted, it could not establish the single conspiracy charged but two distinct conspiracies. The applicants placed emphasis on Gerakiteys v The Queen (1984) 153 CLR 317; [1984] HCA 8 (“Gerakiteys”).

20. [247]

    In Gerakiteys, the applicant was convicted on a charge that he conspired with Harrison and divers others to cheat and defraud divers insurance companies. The particulars furnished by the Crown alleged that nine persons other than the applicant and Harrison were parties to the conspiracy. On appeal to this Court, Street CJ, with whom Nagle CJ at CL agreed, said that there was no evidence sufficient to indicate that all of the nine persons other than the applicant and Harrison had been jointly involved with each other, as well as with the applicant and Harrison, in the conspiracy. Rather, the evidence indicated that, besides an arrangement between the applicant and Harrison, there were four similar arrangements involving various persons who were intending to make fraudulent claims, each on a particular insurance company, but no arrangement to which all nine claimants were parties to defraud all those companies. This Court allowed the appeal by the applicant on the ground, amongst others, that there was no evidence of a conspiracy between eleven persons to defraud a number of insurance companies.

21. [248]

    The sole issue on appeal to the High Court of Australia was whether a re-trial should have been ordered and the reasoning of Street CJ was not challenged on the question of separate conspiracies. Gibbs CJ said at p 320:

22. [249]

    Unlike the evidence in Gerakiteys, there is very strong evidence in the present case that during the period of the charge (count 2), Cranney, Huynh, Lamella, Valsamakis, D Harb and Napoli were parties to an agreement which had the common design to import more than the commercial quantity of pseudoephedrine into Australia. Such a conclusion arises particularly from the evidence of Lamella and Valsamakis, the intercepted material and text messages. Cranney may have been on holidays in January 2012, but it was open to the jury to conclude that he played a major role in all four importations.

23. [250]

    In oral argument, there was an exchange with the Crown as to whether the 30 March 2012 cafe meeting between Cranney, Valsamakis and Lamella was consistent with a second conspiracy. During that meeting, the organisation of the next importation was discussed.

24. [251]

    The cafe meeting is not to be viewed in isolation. When considered as a whole, the evidence points strongly to the common design of the agreement not changing throughout the period of count 2 and Cranney, Huynh, Lamella, Valsamakis, D Harb and Napoli continuing to be parties to the agreement. Whilst the couriers may not have been the same, the methodology employed in the four importations was generally the same. Furthermore, the same precursor, pseudoephedrine, was involved in each importation. In my view, it cannot be said that the evidence is as consistent with the existence of separate conspiracies, as it is with one conspiracy.

25. [252]

    The recruitment of Prom and Russell for the 9 March 2012 importation, Hikaiti-Paul for the 4 June 2012 importation, Erlambang for the 5 June 2012 importation and Garcia and Musa for the 6 June 2012 importation does not mean that there was more than the single conspiracy charged. It has long been recognised that parties may enter and depart from a conspiracy throughout its life. Changes can be made to bring about the common design. A conspiracy does not have the inflexibility of a formal contract: Director of Public Prosecutions v Doot [1973] AC 807.

26. [253]

    The conspiracy was not complete when D Harb located the couriers’ bags and stored them in an out of the way area at SIA on 9 March 2012. It was open to the jury to conclude that the June importations were planned and carried out in furtherance of the common design. In Savvas v The Queen (1995) 183 CLR 1; [1995] HCA 29, the High Court (Deane, Dawson, Toohey, Gaudron and McHugh JJ) said at p 8:

27. [254]

    In my view, the applicants’ contention that the verdicts were unreasonable as the evidence failed to establish beyond reasonable doubt the existence of a single conspiracy as opposed to separate conspiracies is to be rejected.

28. [255]

    Turning to Ground 5 (Cranney) and Ground 3 (Huynh), there is no substance in the applicants’ complaint that the judge was required to direct the jury that the Crown was obliged to prove a single conspiracy and not two separate conspiracies. The second part of what is asserted to have been a required direction that “the named co-conspirators were each party to a single agreement spanning both the March and June importations” is wrong in law. His Honour correctly directed the jury that they had to be satisfied beyond reasonable doubt that in the case of Cranney and in the case of Huynh, the applicant intentionally participated with “any one or more of the admitted participants in the agreement in the first half of 2012 to import more than the commercial quantity of pseudoephedrine.” In order to establish its case, the Crown did not have to prove that all of the persons named in count 2 were parties to the single conspiracy alleged.

29. [256]

    The alternative grounds Ground 6 (Cranney) and Ground 4 (Huynh) were founded upon what is often referred to as ‘latent duplicity’. It was not suggested that count 2 on its face charged more than one offence (often referred to as “patent duplicity”): Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26 at p 84. As Spigelman CJ explained in R v B (2008) 76 NSWLR 533; [2008] NSWCCA 85 at [53]:

30. [257]

    In my view, neither the evidence nor the directions to the jury permitted the jury to find more than one conspiracy. It is not surprising that the question of separate conspiracies was not raised by the applicants’ counsel in the trial. The central issue for the jury’s consideration was whether each of the applicants was a member of the conspiracy that was alleged in count 2.

31. [258]

    Another submission by Ms Bashir was that the June importations could not be rolled into a single offence because of s 311.16(b) of the Criminal Code. Section 311.16 is as follows:

32. [259]

    The June importations were not committed “within a period of not more than 30 days” from the March importation. Does s 311.16 prohibit the prosecution proving a single conspiracy in the terms of count 2, even though the applicants may have been so charged under the common law?

33. [260]

    The relationship between the position at common law and the Criminal Code was considered in R v RK; R v LK (2008) 73 NSWLR 80; [2008] NSWCCA 38. Spigelman CJ said at [49]:

34. [261]

    In R v LK, the plurality judgment (Gummow, Hayne, Crennan, Kiefel and Bell JJ) agreed at [107] with Spigelman CJ’s conclusion.

35. [262]

    Section 311.16 is found in Subdiv C which is headed “Combining parcels for multiple offences”. The purpose of Subdiv C is to enable the Prosecution to aggregate multiple offences against particular sections of the Criminal Code so that they can be prosecuted as a single offence. There are a variety of offences in Subdiv C for which aggregation is available, for instance; s 311.8 (trafficking controlled drugs); s 311.9 (commercial cultivation of controlled plants); s 311.18 (procuring children for trafficking marketable quantities of controlled drug).

36. [263]

    Each section in Subdiv C commences with the words “The prosecution may prove an offence against section…” [Emphasis added.] The word “may” is permissive. Section 33(2A) of the Acts Interpretation Act 1901 (Cth) provides:

37. [264]

    Section 311.16 permits the prosecution to aggregate multiple offences committed by a defendant against Subdiv D of Division 307 upon proof of those matters referred to in subss (a), (b) and (c). Those offences may have been committed by a single defendant on different occasions provided “each of those offences was committed within a period of not more than 30 days from another of those offences.” There is nothing to suggest that conspiracy as fixed by the common law is in any way modified by the words of the section. I would reject the argument that s 311.16 prohibits the applicants being charged in the terms of count 2.

38. [265]

    Accordingly, I would refuse leave to argue these grounds.

Ground 7 (Huynh): A miscarriage of justice was occasioned by the Crown’s submission to the jury in closing address that they would not accept that the appellant was someone of prior good character and had engaged in money laundering

1. [266]

   These grounds may conveniently be dealt with together. Before summarising the applicants’ arguments, it is helpful to recount the background to these grounds of appeal.

2. [267]

   Towards the conclusion of his closing address, the Crown Prosecutor, relevantly, said the following to the jury (Tcpt, 28 May 2015, pp 2693–2695):

3. [268]

   Following these remarks, the Crown Prosecutor indicated that he might be finished with his address and the judge allowed the jury to briefly adjourn. In the absence of the jury, the applicants’ trial counsel complained to the judge about what had been said by the Crown Prosecutor about character. Mr Stanton (Cranney’s trial counsel) submitted that he had at no stage sought a character direction for his client, that such a direction would not have been open to him and that it would have been “suicidal” to make such a request. This culminated, he argued, in character being raised “in a most stark and…prejudicial fashion” (Tcpt, 28 May 2015, p 2696). Mr Stanton sought access to the transcript following the Crown Prosecutor’s closing so that he could make an application for the discharge of the jury. Mr Djemal (Huynh’s trial counsel) put to the judge that evidence had been called for Huynh and he “never went anywhere near character for very good reason” and what the Crown Prosecutor said about Huynh “was even more amplified when [the Crown] tried to suggest that [Huynh had] been laundering money through the TAB by way of buying tickets which were never put to him…” (Tcpt, 28 May 2015, p 2699). Mr Djemal told the judge that he would make an application to discharge the jury.

4. [269]

   The trial adjourned over the weekend. Upon the resumption of the trial on 1 June 2015, applications to discharge the jury were made on behalf of the applicants in the absence of the jury.

5. [270]

   Mr Stanton submitted that the Crown Prosecutor’s remarks misstated what character is by arguing that it is “not an ironclad defence”, as good character is never a defence, and further, that good character could not apply in this case because Cranney did not give evidence or make an out of court statement to police (Tcpt, 1 June 2015, pp 2706, 2709).

6. [271]

   In discussions with the judge about a good character direction, Mr Stanton argued that his cross-examination of Valsamakis and Lamella was such that the jury would be prejudiced against any good character direction given in respect of Cranney, as that cross-examination revealed aspects of his character that didn’t go to good character, i.e. that Cranney had accepted money from those witnesses so that he would “keep quiet” about what he learnt had occurred (Tcpt, 1 June 2015, pp 2708, 2710). It was submitted that a forensic decision had been made not to ask for a good character direction, and that the limited good character direction to which Cranney would be entitled would make the defence case regarding Cranney’s conduct “a farce” (Tcpt, 1 June 2015, p 2712).

7. [272]

   Mr Djemal submitted that Huynh would not be entitled to a good character direction due to his custodial history and his record as both a juvenile and adult. He said that these issues were deliberately not raised and evidence was not called relating to character for this reason. Mr Djemal argued that the comments regarding Huynh’s TAB tickets and the suggestion that money could be laundered through them reversed the onus of proof, and that such an assertion had never been put to Huynh in cross-examination. Further, it was submitted that in the context of all the relationship evidence adduced in the case against Huynh, that the Crown Prosecutor’s comments concerning character could not be cured by direction and that these comments were “fatal” to Huynh having a fair trial (Tcpt, 1 June 2015, p 2716).

8. [273]

   The Crown Prosecutor contended that good character had been raised indirectly by Huynh and by Cranney. The Crown Prosecutor said that Cranney’s case was that he was a customs officer of long-standing. As to Huynh, the Crown Prosecutor argued that Huynh’s evidence suggested that he had “a tendency on his part to participate in offences of this kind, and that’s what he says, and I had nothing to do [with] pseudoephedrine in 2011, but, more importantly, that was the same in 2012. So to suggest that Mr Huynh didn’t go anywhere nearing raising character, he is completely wrong…” (Tcpt, 1 June 2015, p 2718).

9. [274]

   The Crown Prosecutor informed the judge that the Crown was prepared to accept for the purposes of the trial that each of the applicants was entitled to a good character direction.

10. [275]

    Following further argument, the judge delivered a short judgment during which his Honour said (Judgment , 1 June 2015, p 1–2):

11. [276]

    During his summing-up, the judge gave the following direction concerning character (SU 20–21):

12. [277]

    His Honour continued his summing-up briefly before informing the jury that it could depart for the day. In the absence of the jury, the judge enquired of counsel whether any issues arose from what he had said to that point, and nothing was raised in respect of the character direction.

13. [278]

    Ms Bashir argued that the consequential effect of the Crown Prosecutor’s address to the jury was that if Huynh was a person of bad character because he associates with criminals then that must have been the same for Cranney as he associated with Valsamakis, Lamella and the others. Ms Bashir said that the jury might of its own volition come to that factual finding regardless of whatever the Crown Prosecutor said in his closing address.

14. [279]

    Ms Bashir submitted that the effect of the judge’s directions to the jury was that the Crown Prosecutor’s address was left standing even though Cranney had not called evidence of prior good character. Moreover, Huynh, who was of prior bad character, was afforded a good character direction on both limbs, whereas Cranney was not, even though the Crown Prosecutor had raised the prospect that character might be taken into account in both respects for Cranney in his closing address. It was pointed out that Huynh was also the beneficiary of a direction that the jury should disregard the Crown Prosecutor’s submission in relation to Huynh running around with people he knew to have been involved in criminal activity, that he was not a person of good character whereas Cranney did not have such a direction. Ms Bashir contended the end result was that Cranney was left in a worse position than his co-accused.

15. [280]

    Mr Dhanji contended that the judge’s good character direction was problematic for the following reasons:

16. [281]

    Another complaint was that his Honour’s direction was not given until 4 June 2015, a week later than the Crown’s address.

17. [282]

    The Crown conceded that the Crown Prosecutor’s submission should not have been made. However, the Crown submitted that the Crown Prosecutor’s remarks did not suggest that Cranney was a person of bad character but were premised upon the prospect that, if raised, the jury could find that Cranney was a person of good character. The Crown argued that if any prejudice did result, that prejudice was cured by the judge’s directions. The difference in the directions was a necessary requirement as Huynh had given evidence.

18. [283]

    As to Huynh, the Crown put to the Court that the directions were neither misleading nor meaningless. The directions positively instructed the jury to accept that each of the applicants was of good character at the time of the relevant events.

19. [284]

    The Crown contended that the Crown Prosecutor’s submission regarding the source of the TAB tickets was made in the context of an assessment of the evidence in Huynh’s case and whether the jury could rely on those tickets as explaining the amounts of cash going into his account during the relevant periods of time. No submission was made by the Crown as to “money laundering”. The Crown argued that the Crown Prosecutor’s submission did not amount to putting his own personal views before the jury but was based on his cross-examination of Huynh. The Crown submitted that the firmly worded directions given by the judge adequately addressed any possible prejudice occasioned by the Crown Prosecutor’s address.

20. [285]

    The Crown observed that the applicants’ trial counsel did not seek any additions to the directions proposed or given by the judge and did not raise any further issues about injustice. The Crown submitted that r 4 applies. However, Ms Bashir contended that r 4 did not apply to the application to discharge the jury.

21. [286]

    I accept Ms Bashir’s submission that r 4 does not apply as the applicants’ trial counsel applied for a discharge of the jury. Furthermore, the Crown accepts that the Crown Prosecutor’s submission should not have been made.

22. [287]

    The judge had the discretion whether to discharge the jury. The judge acknowledged that it was regrettable for the Crown Prosecutor to have raised character. His Honour considered that any potential prejudice to the applicants could be met by appropriately framed directions to which the applicants would have “the opportunity of input”.

23. [288]

    Although the trial judge will usually have a better appreciation of the significance of the matters complained of in the context of the trial, the question for this Court is: “whether…the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice”: Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 at p 441.

24. [289]

    It is the case that the Crown Prosecutor’s remarks were made on 28 May 2015 and the judge commenced his summing-up on 4 June 2015 at the conclusion of Mr Stanton’s closing address. The applications for discharge were not made until 1 June 2015 and the trial was delayed for two days as it appears a juror was unwell. Notwithstanding the delay, the judicial directions given by his Honour dealt with the matters of potential prejudice plainly and with firmness.

25. [290]

    The Crown Prosecutor’s address was neither left standing nor were the directions misleading nor meaningless. In my view, the members of the jury could not have been left in any doubt that they were to accept that each of the applicants were of good character, which they were entitled to take into account in the applicants’ favour in determining whether the Crown had proved the offences beyond reasonable doubt. Both of the applicants received the benefit of a good character direction to which they were not otherwise entitled.

26. [291]

    There is no substance in Cranney’s complaint that he was disadvantaged by his Honour’s directions. The simple answer to his complaint of disadvantage is that Huynh gave evidence whereas he neither entered into a record of interview nor testified during the trial. Furthermore, the Crown Prosecutor’s remarks about Huynh running around with people that he knew to have been involved in criminal activity were confined to Huynh which the judge directly addressed in his instructions to the jury. His Honour’s directions were not required to be identical for Cranney and Huynh.

27. [292]

    There is no merit in Huynh’s complaint that the directions reminded the jury of Huynh’s association with people that he knew were involved in criminal activity. To address any potential prejudice to Huynh, the judge properly told the jury that the Crown Prosecutor’s submission should be disregarded.

28. [293]

    No complaint was made by the applicants’ trial counsel concerning his Honour’s character directions. His Honour sought the “input” of counsel by providing them with a draft of the character directions prior to his summing-up. On at least three occasions, his Honour enquired as to whether counsel had any issue with the proposed directions but nothing was raised about the character direction.

29. [294]

    Any danger to the fairness of the applicants’ trials was eradicated by the instructions to the jury. No risk of a substantial miscarriage of justice was occasioned by the judge’s refusal to discharge the jury or by his Honour’s directions.

30. [295]

    Ground 7 (Cranney) and Ground 7 (Huynh) have not been established.

Ground 8 (Cranney): The verdicts on the bribery offences the subject of Counts 4 and 5 were unreasonable, or alternatively the trials on the bribery offences miscarried

1. [296]

   As Ms Bashir’s submission is founded upon the success of either Grounds 3 or 4, the disposition of this Ground may be briefly stated.

2. [297]

   It was the Crown case that if the jury was satisfied of Cranney’s guilt in respect of the conspiracy offences, it would automatically follow that the jury would be satisfied beyond reasonable doubt that Cranney had dishonestly agreed to receive a benefit with the intention that his duties as a customs officer would be influenced. His Honour confirmed the Crown’s position in his written instructions and summing-up to the jury. Cranney was acquitted on counts 1 and 3, but found guilty on counts 4 and 5.

3. [298]

   Ms Bashir’s submission that it was not open to the jury to find Cranney guilty of count 5 on the basis of questions put to Lamella in cross-examination which Lamella did not accept, is undoubtedly correct. However, the Crown case was not premised on these answers. Having made my own independent assessment of the whole of the evidence against Cranney, it was open to the jury to be satisfied beyond reasonable doubt that Cranney had committed the bribery offences being counts 4 and 5.

4. [299]

   Although Ms Bashir appeared to place some reliance on the success of Ground 4, the principal contention in that ground is not relevant to the present argument. In any event, Grounds 3 and 4 have not been upheld.

5. [300]

   Accordingly, Ground 8 has not been established.

Ground 6 (Huynh): His Honour erred in admitting evidence of the appellant’s involvement in the failed importation in December 2011 as ‘relationship evidence’

1. [301]

   Before the jury was empanelled, Huynh applied for a separate trial and objected to certain evidence which the judge placed into two categories. The first category was evidence of Huynh’s participation in activities during September to December 2011, which the judge described as being “directed to the attempted fulfilment of a conspiracy the subject of count 1, with which he has not been charged” (Judgment, 26 March 2015, p 1).

2. [302]

   His Honour described the second category as being evidence concerning “Huynh’s involvement in connection with a failed importation of pseudoephedrine from China in early to mid-2011” (Judgment, 26 March 2015, p 1).

3. [303]

   The judge decided to deal with the objections to the evidence before determining Huynh’s application for a separate trial.

4. [304]

   Cranney was charged with count 1 but Huynh was not. Count 1 was a charge of conspiracy to import a commercial quantity of pseudoephedrine between about 1 September 2011 and about 21 December 2011. Cranney, Lamella, Valsamakis, Napoli, D Harb and others were alleged to be members of this conspiracy.

5. [305]

   A convenient summary of the evidence that was said by the Crown to be relevant to the first category is found in paragraphs 23 to 57 of a document entitled, Summary of the Crown case (“the Crown case statement”). Upon the Crown case, the evidence of Huynh’s participation in activities that were directed to the attempted fulfilment of the conspiracy, the subject of count 1 included:

   1. (1)

      intercepted telephone calls and text messages between Lamella and Napoli during September to November 2011, in which they arranged to meet with Huynh, discussed Huynh’s attempts to source “gear” overseas and later their increasing frustration with him; and

   2. (2)

      several meetings between Lamella and Huynh, either on his own or with Napoli, during September to November 2011 and Lamella’s evidence as to what occurred at those meetings; and

   3. (3)

      meetings between Lamella and Napoli; and

   4. (4)

      intercepted calls and text messages between Huynh and Lamella during the period of 11 October 2011 to 19 November 2011 arranging or attempting to arrange to meet up.

6. [306]

   The principal objection raised by Huynh to the first category of evidence was that it gave rise to a danger of unfair prejudice to him which outweighed any probative value that it might have. Huynh submitted that it should be excluded pursuant to s 137 of the Evidence Act 1995 (NSW) (“Evidence Act”). The Crown submitted that the evidence was relevant in the case against Huynh, to show precisely how it was that he became involved in the 2012 conspiracy (count 2). It was the Crown case that the evidence gave appropriate context to the genesis of count 2 and as background to the relevant relationships. The Crown contended that the evidence related to events that occurred prior to the critical text message sent by Huynh to Lamella on 27 December 2011 in which Huynh told Lamella that he has got “good news”. His Honour described that text message “to arguably be, the catalyst for the formation of the count 2 conspiracy” (Tcpt, 26 March 2015, p 2).

7. [307]

   A summary of the evidence that was said by the Crown to be relevant to the second category of evidence is found in paragraphs 14 to 22 of the Crown case statement. Upon the Crown case, the evidence of the Huynh’s participation in a failed importation of pseudoephedrine from China in mid-2011 included evidence of:

   1. (1)

      the initial meeting between Huynh and Lamella in early 2011, arranged by Napoli, a mutual friend, during which they discussed importing drugs into Australia; and

   2. (2)

      Huynh’s approach to Ayoub about being a courier for the purpose of importing pseudoephedrine from China; and

   3. (3)

      a subsequent meeting at the Pine Inn between Huynh, Ayoub, Lamella and others in which arrangements for the importation from China were discussed in detail; and

   4. (4)

      Ayoub’s travel to China; and

   5. (5)

      Napoli notifying Lamella that Huynh had been unable to source pseudoephedrine.

8. [308]

   The second category of evidence was the subject of a tendency notice under s 97(1) of the Evidence Act. However, the Crown Prosecutor told the judge that the tendency notice was served “in an abundance of caution” (Judgment, 26 March 2015, pp 1–2). The Crown submission was that the evidence in the second category was relevant in a very similar way to the evidence in the first category. A tendency notice had not been served in relation to the first category evidence.

9. [309]

   Huynh’s argument was that the evidence should be excluded under s 137 of the Evidence Act.

10. [310]

    After hearing argument on the voir dire, the judge delivered judgment.

11. [311]

    In respect of the first category of evidence, his Honour said (Judgment, 26 March 2015, p 4–5):

12. [312]

    When considering the objection based on s 137 of the Evidence Act, his Honour said (Judgment, 26 March 2015, p 6):

13. [313]

    The judge admitted the first category of evidence against Huynh. This evidence was also led in the Crown case against Cranney.

14. [314]

    The judge went on to consider the admissibility of the second category of evidence. His Honour noted that second category of evidence was a “little more remote in time” from the charged conspiracy but only by a few months. His Honour observed that the contemplated methodology of the importation was slightly different to that ultimately employed. The judge said (Judgment, 26 March 2015, p 7–8):

15. [315]

    As to s 137 of the Evidence Act, the judge said (Judgment, 26 March 2015, p 8–9):

16. [316]

    The judge admitted the second category of evidence against Huynh. This evidence was not led by the Crown against Cranney.

17. [317]

    The judge went on to say that although it may have been unnecessary to reach a concluded view concerning the tender on a tendency basis, it seemed to him that the second category of the evidence had the capacity to rationally affect the assessment of the probability of the existence of facts in issue to a significant extent. His Honour said that if the evidence was ultimately characterised as tendency evidence, any unfair prejudice could adequately be met by directions. His Honour’s conclusion was that in considering the balance required by s 101 of the Evidence Act, the probative value of the evidence substantially outweighed any unfair prejudice to Huynh.

18. [318]

    Relevantly, the judge instructed the jury to approach the evidence as follows (SU 21–22):

19. [319]

    Huynh submitted that the judge did not explain how the admitted evidence affected the likelihood of the existence of the conspiracy in 2012. As to his Honour’s determination that the evidence was relevant in the manner contemplated in Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50 (“Harriman”), Huynh argued that there was nothing particular about the character of his relationships with his alleged co-offenders or his actions in 2011 that gave the evidence the same probative value as contemplated in Harriman. Reference was made to R v Quach (2002) 137 A Crim R 345; [2002] NSWCCA 519 where Harriman was applied. In that case, as in Harriman, the relationship evidence was led to exclude the possibility that the offender’s visit to a house where a drug supply occurred was not capable of innocent explanation.

20. [320]

    The argument was that if the evidence was used in the manner contemplated by his Honour’s direction, it would only further the Crown case if the jury reasoned that because Huynh had behaved in a particular manner in his relationships with his alleged co-offenders in the past, he was likely to behave in the same way in 2012. Huynh said that this amounted to tendency reasoning about which the judge did not direct the jury. Further, the judge was unable to articulate how the evidence may be used as tendency evidence and was not in a position to properly assess its capacity to rationally affect the assessment of the probability of the existence of a fact in issue, such that it could be said that the tests provided by ss 97 and 101 of the Evidence Act were properly applied.

21. [321]

    The Crown submitted that his Honour’s reasons demonstrated that the evidence was highly probative of whether Huynh was a party together with Lamella, Napoli and others to the conspiracy in count 2. This was the central issue in the trial.

22. [322]

    The Crown argued that the circumstances in Harriman could be directly related to the circumstances of the case. Further, the probative nature of the evidence in Harriman did not depend solely on the nature of the relationship between the offender and the co-offender outside the commission of the offence.

23. [323]

    In a further submission, the Crown contended that his Honour’s direction to the jury did not invite tendency reasoning.

24. [324]

    As emphasis was placed in submissions on the decision of the High Court in Harriman, it is worthwhile re-visiting the principles established in that case. In Harriman, the accused and another co-offender (the chief prosecution witness) had travelled to Thailand together. The co-offender then travelled to London and posted heroin to addresses in Australia. Harriman was charged with five counts of being knowingly concerned in the importation of heroin contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). The High Court unanimously admitted evidence of Harriman’s prior involvement with the co-offender in the sale of heroin.

25. [325]

    In identifying the principles that he would apply in admitting the evidence, Brennan J said at 594:

26. [326]

    This is the passage of Brennan J’s judgment that his Honour referred to in his judgment on the voir dire.

27. [327]

    Both categories of the evidence revealed the true nature of the relationship between Huynh, Napoli and Lamella. As his Honour explained when referring to the second category (see [312] above):

28. [328]

    Both categories of evidence pointed to a substantial involvement by Huynh in the planning of importations of pseudoephedrine into Australia in 2011. All of this evidence could support an inference of his participation in the conspiracy to import pseudoephedrine in 2012. Furthermore, the evidence supported the Crown case on the significance of the text messages between Huynh, Lamella and Napoli; the various meetings that they attended; the intercepted telephone call between Huynh and an unknown Vietnamese male on 19 January 2012; Huynh’s trips to Vietnam; and the large payments into Huynh’s bank account.

29. [329]

    As in Harriman, the evidence was admissible as being highly probative of the criminal character of the association between Huynh and the co-offenders at the time of the importations in March and June 2012. I would reject Huynh’s argument that the disputed evidence was in reality tendency evidence and productive of tendency reasoning.

30. [330]

    The judge appropriately carried out the balancing exercise required under s 137 of the Evidence Act. His Honour considered that any prejudice to Huynh could be adequately met by directions.

31. [331]

    Having admitted the evidence, it was unnecessary for his Honour to consider the matter further.

32. [332]

    The applicant’s complaint concerning the direction to the jury (see [316] above) depends upon the rejected premise that the evidence was, indeed, tendency evidence. In any event, the judge’s instructions to the jury included a direction against propensity reasoning. His Honour’s directions included the following (SU 22–23):

33. [333]

    I would reject Ground 6 of Huynh’s appeal.

Ground 8 (Huynh): A miscarriage of justice occurred as a result of impermissible questions asked by the prosecutor

1. [334]

   Huynh directed this Court’s attention to the following questions that had been put to him by the Crown Prosecutor asking if Lamella was lying (Tcpt, 25 May 2015, p 2443; Tcpt, 25 May 2015, p 2446):

2. [335]

   Huynh submitted that those questions were impermissible and breached the principles in Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 at [8]–[11] (“Palmer”) and R v Rich (1998) 102 A Crim R 165 (“Rich”).

3. [336]

   Reference was also made to the rhetorical question asked in the Crown Prosecutor’s closing address (Tcpt, 27 May 2015, p 2610):

4. [337]

   Huynh contended that the Crown Prosecutor was bolstering Lamella’s testimony with his own personal opinion.

5. [338]

   Another complaint was that the Crown Prosecutor asked him the following in cross-examination (Tcpt, 25 May 2015, p 2416):

6. [339]

   Huynh argued that these questions were highly prejudicial and irrelevant. Huynh’s contention was that they could only go to character and no leave had been sought which was a breach of s 112 of the Evidence Act.

7. [340]

   It was submitted that as Huynh’s credibility was central to the jury’s deliberations, any undermining of it by impermissible questions would have impacted adversely on his credibility. R v Soto-Sanchez (2002) 129 A Crim R 279; [2002] NSWCCA 160 at [29], [33] and [44] (“Soto-Sanchez”) was cited as was Stanoevski v The Queen (2001) 202 CLR 115; A Crim R 247 at [58] (“Stanoevski”).

8. [341]

   Huynh accepted that r 4 applied, but submitted that leave should be granted.

9. [342]

   The Crown said that he would not endorse the type of questions reflected in the passage of the Crown Prosecutor’s cross-examination at [332] above. Nevertheless, the Crown’s submission was that these questions by the Crown Prosecutor did not occasion a miscarriage of justice. The Crown argued that the impugned portion of Huynh’s cross-examination did not tend to deflect the jury from a proper assessment of the Crown witnesses and of Huynh. Furthermore, the questioning was said by the Crown not to give rise to an explicit or implicit reversal of the onus of proof.

10. [343]

    The Crown said that the ultimate question is whether the Crown Prosecutor’s cross-examination was such a departure from what is expected of a prosecutor that it gave rise to an impermissible miscarriage of justice. The Crown pointed out that these questions occupied half a dozen lines in a trial that went for “30 odd days”. The Crown referred to Mr Djemal’s cross-examination of Mr Ayoub, who put implicitly to the witness that he was lying.

11. [344]

    The Crown submitted that the reference to Lamella in the Crown Prosecutor’s address was not a statement of personal opinion. Rather, the remarks were simply an argument made to the jury in respect of whether Lamella may be accepted as a credible witness. The Crown argued that there was nothing impermissible arising from this aspect of the Crown Prosecutor’s address.

12. [345]

    As to the line of questioning regarding Huynh’s employment, the Crown contended that the Crown Prosecutor’s questions were neither highly prejudicial nor irrelevant in circumstances where large cash deposits were made into Huynh’s bank accounts in the months after the June importations. No issue requiring leave was raised by the cross-examination.

13. [346]

    There is no substance in Huynh’s complaint concerning the rhetorical question asked by the Crown Prosecutor that is quoted at [334] above. It is not impermissible for a Crown Prosecutor to place before the jury for their consideration matters that are relevant to the assessment of the honesty and reliability of a Crown witness. After all, they are the judges of the facts. The Crown Prosecutor was not placing before the jury his own personal opinion. If he had done so, such an opinion would have been irrelevant – see Hughes v R [2015] NSWCCA 330 at [273]; KNP v R (2006) 67 NSWLR 277; [2006] NSWCCA 213 at [53] – but that is not what occurred here.

14. [347]

    As to the Crown Prosecutor’s cross-examination quoted at [336] above, Huynh’s evidence-in-chief included his TAB and casino winnings. The cross-examination was not about character but directed to the veracity of Huynh’s testimony. Leave of the Court was not required pursuant to s 112 of the Evidence Act. The questions were neither irrelevant nor impermissible. The principles considered in Soto-Sanchez and Stanoevski do not apply in these circumstances.

15. [348]

    There is merit in Huynh’s complaint about the questions he was asked by the Crown Prosecutor in the passage quoted at [332] above. Huynh should not have been invited to express an opinion as to whether Lamella was lying. As has often been stated, the witness’ opinion is irrelevant. Whether or not Lamella was lying was a matter for the jury: R v Leak [1969] SASR 172 at pp 173–174; Rich at p 169.

16. [349]

    However, the impact of the Crown Prosecutor’s questions is to be considered in the context of how the trial was conducted prior to Huynh’s evidence, which was given on the 30th day of the trial. Lamella and Valsamakis had been vigorously cross-examined by counsel for both applicants. It would have come as no surprise to the members of the jury that both Huynh and Cranney asserted that Lamella and Valsamakis were lying. This was not a case where there was no direct evidence of an actual motive to lie, or no evidence from which a specific motive to lie could reasonably be inferred: see R v E (1996) 39 NSWLR 450 at [26]; Palmer at [7]–[9]. Both Lamella and Valsamakis had benefited from discounts in their sentences on the condition that they gave evidence. Other than this motive to lie, further reasons for lying were raised. During his directions to the jury, the judge said (SU 24–25):

17. [350]

    There was no danger of the Crown Prosecutor’s questions giving rise to illegitimate speculation or reversing the onus of proof. No possibility of real injustice has been demonstrated.

18. [351]

    Accordingly, I would refuse leave to argue this ground.

Ground 9 (Huynh): A miscarriage of justice occurred as a result of His Honour, the trial judge’s failure to ascertain precisely what use was to be made of the asserted lies

1. [352]

   Huynh submitted that the judge did not ascertain from the Crown Prosecutor the use to be made of what was said to be a deliberate lie in his closing address. The contention was that his Honour should have ascertained from the Crown if the asserted lie was going to a consciousness of guilt or to credibility. Huynh referred to authorities which state that the topic of lies must be approached with care. Amongst the authorities cited was Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 (“Edwards”); Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 (“Zoneff”) and R v Healy [2008] NSWCCA 229.

2. [353]

   Huynh argued that the need for an Edwards or Zoneff direction was of fundamental importance to Huynh receiving a fair trial. Huynh accepted that r 4 applied but submitted that leave should be granted.

3. [354]

   The Crown submitted that the Crown Prosecutor did not make any express submission that the identified lies should be treated as consciousness of guilt. Rather, it was a general submission that clearly went to Huynh’s credibility. The Crown argued that there was no danger that the jury would use the evidence inappropriately as an admission of guilt nor was there a risk of misunderstanding about how the suggested lies could be used. The Crown contended that no miscarriage of justice occurred.

4. [355]

   The focus of Huynh’s complaint is the following passage in the Crown Prosecutor’s address to the jury (Tcpt, 28 May 2015, p 2690):

5. [356]

   What was said by the Crown Prosecutor was made in the course of raising issues as to the credibility of Huynh’s evidence. At no time did the Crown rely on what was said to be a deliberate lie as indicating a consciousness of guilt. No direction in relation to lies was sought by Mr Djemal. This provides a strong indication that there was no risk of misunderstanding on the part of the jury about the significance of the possible lie: FP v R [2012] NSWCCA 182 at [148]; Ahmed v R [2012] NSWCCA 260 at [45].

6. [357]

   The judge was not required to ascertain from the Crown Prosecutor the use to be made of the asserted lie as it was plain that it was relevant to Huynh’s credibility. Furthermore, his Honour was not obliged to give a direction to the jury concerning the asserted lie. As was said in Dhanhoa v R (2003) 217 CLR 1; [2003] HCA 40 by Gleeson CJ and Hayne J at [34]:

7. [358]

   No miscarriage of justice has been demonstrated.

8. [359]

   Accordingly, I would refuse leave to argue this ground.

9. [360]

   The orders that I propose are:

   1. (1)

      Christopher Phillip Cranney’s appeal against conviction is dismissed.

   2. (2)

      Huy Bao Van Huynh’s appeal against conviction is dismissed.