FEDERAL COURT OF AUSTRALIA

CRIMINAL LAW - conspiracy - where alleged co-conspirator acquitted - where no relevantly separate evidence against convicted conspirator - whether verdict inconsistent - sentence - factors to be taken into account - quality and quantity of prohibited substance - role of convicted person in importation of prohibited substance - effect of “truth in sentencing” legislation - appeal and new trial - fresh evidence - whether significant possibility that jury, acting reasonably, would have acquitted if the fresh evidence had been before it - particular grounds - whether verdict unsafe and unsatisfactory - whether verdict against the weight of evidence

Crime Act 1900 (ACT):  s 429(1)

Customs Act 1901 (Cth):  s 233B(1)(c)

Drugs of Dependence Act 1989 (ACT):  s 164(3)(c)

Dharmasena v The King (1951) AC 1, applied

Gallagher v The Queen (1968) 160 CLR 392, applied

M v The Queen (1994) 181 CLR 487, applied

Mickelberg v The Queen (1989) 167 CLR 259, applied

R v Thao Ngoc Luong (District Court of NSW, Judge Graham, 13 April 1997), applied

R v Maclay (1990) 19 NSWLR 112, applied

R v Suen (1986) 25 A Crim R 393, explained

Sheppard v The Queen (1990) 170 CLR 573, applied

The Queen v Darby (1981-82) 148 CLR 668, applied

CHUNG THI LE v THE QUEEN

A1 of 1997

FOSTER, von DOUSSA AND MADGWICK JJ

CANBERRA

24 OCTOBER 1997

THE COURT ORDERS THAT:

1.         The appeal be allowed in part.

2.         The conviction for conspiracy be set aside and in lieu thereof  a verdict of acquittal be entered.

3,.        The conviction for possession of a trafficable quantity of heroin for purpose of supply be confirmed.

4.         The appeal against sentence be allowed in part.

5.         The non-parole period be varied from a period of 6 years to a period of 4½ years.

6.         The sentence be otherwise confirmed.

7.         The time already served to count in respect of the sentence and non-parole period.

REASONS FOR JUDGMENT

THE COURT:  This is an appeal brought by the appellant, Chung Thi Le, against both her conviction and sentence in respect of two charges.  The first charge was one of conspiracy with another person, her ex-husband Dien Van Le (“Dien”).  Because of the nature of submissions made to us in the appeal, it is necessary that we set out in full the charge upon which the appellant and Dien were arraigned before the jury, there having been some alteration, after argument, in the wording of the original indictment.  The charge to which both the appellant and Dien pleaded not guilty was as follows:

“Dien Van Le and Chung Thi Le, you stand charged that between the 1st day of October 1995 and the 12th day of April 1996 at Canberra in the Australian Capital Territory you conspired with each other to possess a trafficable quantity of a prohibited substance, namely heroin, for the purpose of sale or supply to any person.”

The appellant was also charged separately with the further charge that she “on the 11th day of April 1996 at Canberra possessed a trafficable quantity of a prohibited substance, namely heroin, for the purpose of sale or supply to any person.”

To this charge she also pleaded not guilty.

This latter charge was laid under s 164(3)(c) of the Drugs of Dependence Act 1989 (ACT).  The proscribed penalty in relation to the possession of a “trafficable quantity” is “$100,000 or imprisonment for 25 years, or both”.  There was no dispute that the amount of heroin involved in the charges was “a trafficable quantity”. 

The arraignment of the appellant and Dien took place before Miles CJ and a jury in the Supreme Court of the Australian Capital Territory on 11 November 1996.  On 19 November 1996 the appellant was found guilty by the jury on both charges.  The co-accused Dien was acquitted.  The appellant was subsequently sentenced by Miles CJ on 18 December 1996 to imprisonment for 10 years with a non-parole period of 6 years, both periods to date from 12 April 1996.  In imposing sentence, his Honour did not impose separate sentences for the two offences.

The appellant appeals against her conviction on each of the charges and also against the alleged severity of the sentence imposed.

The appeals against conviction

It was submitted on behalf of the appellant that each conviction should be quashed on the grounds that the verdicts were unsafe and unsatisfactory and against the weight of the evidence.  In addition, a new trial was sought on the basis of the existence of fresh evidence.  It is convenient before dealing with each ground of appeal to set out the salient facts of the prosecution case which, it may be accepted, were established to the satisfaction of the jury.

The appellant had lived in Hong Kong prior to coming to Australia in 1992.  She had come to Australia with Dien whom she had met and married in Hong Kong.  They were subsequently divorced in Australia but had had a son named Tuyen.  After the separation she resided with the child at 3 Toomey Place, Spence, her ex-husband residing elsewhere in Canberra although he made fairly regular visits to those premises to see his son and, according to his evidence, to see if the appellant “had any boyfriend”.  The appellant was not in employment and would appear to have been living in strained circumstances.

On 7 April 1996 two packages, similar in appearance were examined at Sydney Airport by a Customs officer.  They had been sent from the same post office in Hong Kong by express mail to two different addresses in Canberra.  The evidence disclosed that they had been dispatched from the post office at an interval of one minute.  One of these was addressed to 3 Toomey Place, Spence ACT 2615, the addressee being Le Van Tien.  The other was directed to a different address in Canberra, 10 Frost Place, Page, the addressee being Hai Duy Nguyen.  We shall refer to it later in these reasons.  The packages bore a similarity to an earlier package intercepted by Customs which had contained prohibited substances.  Suspicion having been aroused, the packages were handed over to the police for examination.  The package addressed to Toomey Place was found to contain some clothing and also a porcelain statue of “Buddha”.  The statue was found to contain two bags of white powder weighing 1068.2 grams.  This powder contained pure heroin to the weight of 811.8 grams.  The package had attached to it a “Happy Easter” card.  Most of the heroin was removed from the statue which was appropriately reconstructed, there having been placed within it a small trafficable quantity of the drug together with an appropriate quantity of inert substance.  The package was then reassembled and a controlled delivery made to the premises at Toomey Place.  An appropriate search warrant was also obtained.

The delivery was made by a police officer posing as a postal officer.  The door of the premises was opened by the appellant.  A conversation along the following lines took place.  The constable showed the name and address on the package to the appellant, stating that he had a package for a Mr Le.  The appellant, having indicated that Mr Le was not home at the moment, agreed to sign for the package in the two appropriate places for signature on the delivery note.  She printed her name as “Lee Thi”, which was not her correct name.  In cross-examination the constable denied a suggestion that the appellant had said to him that the addressee was a person who had lived at that address.

A transmitter, which had been previously placed within the package, provided information that it was in fact opened about two minutes after delivery had been taken.  The premises were under police surveillance at the time.  About ten minutes after the package was delivered a vehicle came to the premises containing two men.  One of these was Dien.  They walked towards the house and then returned to the vehicle.  Dien gave evidence as to the purpose of the visit to the premises to which reference will be made later.  He had left the premises by 12:20pm when the police entered pursuant to the search warrant.  At that time only the appellant and her son were in occupation.  They were watching TV.  The package had been opened and was in the hall way.  The clothing which it had contained was in it or about it.  The Buddha statue was not in the package but was found concealed on the top of a water heater in another room.  It was underneath laundry baskets which had obviously been placed on top of it.  The appellant’s left thumb print was found upon the statue on later examination.  Answers given by the appellant to questions asked by the police at the time of the search were implausible and not helpful to her case.  She had opened the package to have a look at its contents and had found clothes and “a pottery”.  She had found the pottery “pretty” and so had put it where it had been found.  She also said that she had only read the address on the outside of the package before opening it, a statement clearly in conflict with the evidence of the police officer referred to above.

Later, a recorded interview was held with the appellant.  She said that she had gone to Hong Kong on 12 December 1995 in company with her son and her husband Dien, although they were then divorced.  Although unemployed she had paid for the tickets.  They had stayed overnight in Hong Kong and then travelled to Vietnam on family business, apparently to attend a funeral.  Answers given in relation to the day of her arrest were strongly suggestive that her involvement in the receipt of the package was not innocent.  She said that she had not had any visitors that morning.  She had told the postman that it was the right address for the package and that it belonged to a friend who was not there although she agreed that she could sign for it.  The friend, Le Van Tien, had stayed at the premises for a few days in the previous October or November and she had thought the package was for him although there had been no other mail for him.  She did not know where he lived and had had no contact with him for a long time.  Although not being aware whether he would return she had taken the package in order to give it to him whenever he did.  The receipt of the package in these circumstances, strange in itself, would not normally lead to its being interfered with by the recipient.  However, she said that she had undone the package as she “was curious, I was wondering what was inside”.  She had thought that the Buddha statue, found within, was “very pretty”.  She had wanted to wash it and keep it and had put in on top of the tank where it was found because she had wanted to ensure that it was not broken.  The laundry basket had been placed on top of it because of a lack of space in the room.  Although she had wanted to wash the statue she had not had time to do so between locating it in the package and the arrival of the police as she and the child were watching a film on television.  She said that Dien, her ex-husband, had come to the house but had only spoken to her at the door.  The conversation concerned the whereabouts of some friends who, she said, had already left the premises.  She did not speak about the package and she had made no phone call between the delivery of the package and the execution of the search warrant. 

As to her relationship with her ex-husband, she said that he visited from time to time to see his son and spent the night.  She was considering a reconciliation.  He kept some clothes at the house, a fact which was verified by police inspection.  The nature of the relationship was vague.  It may be noted that Dien claimed that he had paid for the trip to Hong Kong and Vietnam.

The appellant was adamant in the record of interview that she did not know what heroin was, although she was aware of opium.  She denied any knowledge that the Buddha statue contained heroin or that she was in any way involved with the sending of the package to her address.  However, evidence was given of the police finding a telephone account in her name for the telephone service at 3 Toomey Place.  The records showed that calls had taken place from the telephone at that address to a mobile phone number in Hong Kong.  We shall refer to this phone service as “the Hong Kong mobile phone”.  A computer generated record of incoming and outgoing calls to the Hong Kong mobile phone was proved in evidence in the prosecution case.  In the period leading up the day of her arrest, there had been 16 such phone calls, some of considerable length.  On the 14th of March, a call from Hong Kong to Toomey Place had occupied 29 minutes.  On the 24th of March, a 40 minute phone call had taken place, the call again being made from the Hong Kong number.  Very significantly, on the 3rd of April a short phone call of one minute’s duration had occurred from Hong Kong to the Toomey Place number.  This took place at 2:17pm, approximately five minutes after the packages had been dispatched at the Hong Kong post office.  Other conversations took place

after that date.  There were in fact three on the day before the arrival of the parcel, one from Toomey Place to Hong Kong, the next, 12 minutes later, from Hong Kong to Toomey Place and the next, about an hour later, from Toomey Place to Hong Kong.  The appellant was not questioned by the police in relation to these telephone calls.  She gave no evidence at the trial.

Accordingly, no innocent explanation having been given, the inference was readily available that the telephone communications were connected with the importation of and delivery of the heroin to the appellant.

With these facts in mind, we turn to consider the appellant’s appeal against the conviction for possession of the heroin with intent to supply or sell. 

Appeal against possession conviction

As already indicated, attacks were made on the appellant’s conviction on the basis that it was unsafe and unsatisfactory or against the weight of evidence.  The two grounds involved the same submissions and can be considered together.  As indicated, the appellant gave no evidence.  Accordingly, her case on this charge went to the jury on the basis that the Crown case was not capable of satisfying the jury beyond reasonable doubt that the crime had been committed.  The evidence was circumstantial, and it was submitted that reasonable hypotheses consistent with innocence had not been excluded.  It is convenient to set out at this stage the relevant legal principles.  So far as the “unsafe and unsatisfactory” ground is concerned these have been authoritatively stated by the High Court in M v The Queen (1994) 181 CLR 487 at 493 as follows:

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining quilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations . . .”

As the evidence against the appellant was highly circumstantial, it is appropriate to set out the statement of principle to be found in the judgment of McHugh J in Sheppard v The Queen (1990) 170 CLR 573 at 592-3, where his Honour said:

“There are many cases where the probability of the correctness of an inference of guilt drawn from the circumstances of the case is greater than the probability of the truth of any of the individual circumstances.  As Lord Simon of Glaisdale pointed out in Reg v Kilbourne:

‘Circumstantial evidence . . . works by cumulatively, in geometrical progression, eliminating other possibilities’ . . .

Ordinarily, in a circumstantial evidence case, guilt is inferred from a number of circumstances - often numerous - which taken as a whole eliminate the hypothesis of innocence.  The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.”

As was made apparent on the hearing of this appeal, the main submissions made to the jury on behalf of the appellant were that the Crown case had not eliminated the reasonable hypothesis that she had been merely “set up” by the sender of the heroin from Hong Kong or that the delivery to her was a “decoy” delivery, designed to distract attention from some contemporaneous major criminal importation into Australia.  Counsel obtained concessions in cross-examinations from police officers that such things could happen.  There was no evidence of any other importation reasonably proximate in time.  Indeed, evidence was given that the amount of pure heroin brought in the Buddha statue was the largest recorded importation of the substance into the Australian Capital Territory.  It had a very considerable value which militated strongly against the suggestion that the sender would have thought it worthwhile to risk losing it in a “set up” or “decoy” operation involving an innocent recipient.  We should add that certain other facts to which reference has not hitherto been made might well have had an impact on the jury in their considerations as to whether these hypotheses had been excluded.  The second package, referred to earlier, which had been intercepted by Customs, examined by police, and found to contain clothing and a porcelain figurine containing heroin was addressed to 10 Frost Place, Page ACT.  It had a birthday card attached to it addressed to Tuyen which was the name of her son.  A controlled delivery to these premises was not successfully effected and the package was never claimed at the local post office.  However, she knew the normal occupants of that address, Phuong Thi Vu and her husband Duy Hai Nguyen.  The package was addressed to Duy Hai Nguyen.  Also, those persons were friends of Dien, who at times resided at the premises.  The figurine also contained heroin of very considerable value, although, apparently, less than the value of the heroin delivered to the appellant’s address.  The jury may well have thought that the prospects of the sender arranging for two “decoy” operations and for two innocent people, who happen to know each other well, to be each “set up” was very slight indeed. 

In addition to these considerations, the Crown, in written submissions, has listed the following facts established in the case as providing a sound basis for the jury’s verdict.  They are as follows:

“(a)    The fact that she had lived in Hong Kong prior to coming to Australia, that being the place from which the package containing the heroin had been consigned;

(b)     the fact that she had been in Hong Kong (albeit briefly) only months before the consignment was sent and had had the opportunity to have contact either directly or indirectly with the consignor;

(c)     the fact that the telephone service connected to her premises had been used on a frequent basis in the weeks preceding the arrival of the consignment to make contact with the Hong Kong service (it seems almost inevitable in light of the evidence that it was the appellant who had operated the telephone service at 3 Toomey Place);

(d)     the fact that a call had been received at 3 Toomey Place from the Hong Kong number only five minutes after the consignment had been sent from Hong Kong;

(e)     the fact that other calls had been made or received at other relevant times between the appellant’s telephone service and the Hong Kong service;

(f)      the fact that the appellant had been prepared to accept the consignment from the postal officer given that (on her version of events) she was accepting it on behalf of some-one whom she had not seen for months and whose whereabouts were completely unknown to her at that time;

(g)     the fact that she had signed her name as Lee Thi rather than in her own name;

(h)     the fact that within a mere two minutes of her receiving the package curiosity had got the better of her to such an extent that she had felt compelled to open the package;

(i)      the fact that the only item which had been removed from the package by the appellant was the statue which contained the heroin;

(j)      the fact that she had taken the statue and concealed it in another part of the house;

(k)     the fact that her attempt to innocently explain her actions upon receiving the package was, to put it at its most charitable, implausible;

(m)    the fact that the consignor in Hong Kong was unlikely (given his or her apparent proclivities) to send his or her valuable cargo to an unwitting recipient whose actions upon receipt of it could not be anticipated;”

Bearing these matters in mind, we are quite satisfied that the jury had ample evidence before it upon which it could reach its decision that it was satisfied beyond reasonable doubt of the guilt of the appellant in respect of this charge.  It had quite sufficient reason for excluding the hypotheses raised by the defence.  Its verdict was not unsafe or unsatisfactory, nor against the weight of the evidence.  These grounds of appeal, accordingly, fail.

The appeal against the conviction for conspiracy

It will be remembered that the accused was charged only with conspiring with her ex-husband Dien.  The case was conducted, without objection, on the basis that others were also involved in the criminal conspiracy.  Clearly this must have been so.  At the very least, the person who sent the packages from Hong Kong was a co-conspirator.  It was possible for both the appellant and Dien each to have been part of a much wider conspiracy in which all conspirators conspired with each other.  The charge could therefore be made out if it were established that the appellant and Dien conspired with each other as a result of each being a participant in the wider conspiratorial group.  However, in the ultimate, in order for the appellant to be convicted on this charge, it was necessary for the jury to be satisfied beyond reasonable doubt that she had conspired with Dien.

As already indicated, Dien was acquitted of the charge of conspiring with the appellant.  It is the appellant’s contention on the appeal that, in the circumstances of the case, his acquittal should, of necessity, result in her also being acquitted.  On this basis, it is sought that her conviction be quashed.

In determining this ground of appeal, it will be necessary for us to consider the evidence adduced against Dien which, of course, was not regarded by the jury as sufficient to warrant conviction.  Before doing so, however, it is convenient to set out the principles which have been established in relation to the effect of an acquittal of one co-conspirator upon the conviction of the other.  The question was fully considered and the law for Australia expounded by the High Court in The Queen v Darby (1981-82) 148 CLR 668.

In that case the appellant and one Thomas had been convicted after being tried together on a charge of unlawfully conspiring to commit robbery.  Thomas’ conviction was subsequently quashed by the Court of Criminal Appeal of Victoria.  Thereafter Darby applied for leave to appeal on the ground that Thomas’ acquittal necessitated his own acquittal.  The Court granted leave, allowed the appeal and quashed the conviction.  The Crown appealed by special leave to the High Court.  The Court of Criminal Appeal  had considered itself bound by earlier English authority (Dharmasena v The King [1951] AC 1) to hold that “where two persons are jointly presented for trial on a single count of conspiracy between themselves and no other, the acquittal of one necessitates the acquittal of the other”.  The Crown sought that the High Court should hold that this rule lacked any present justification and was wrong in principle.  As such it should not be part of the common law of Australia.  The Court, after consideration of  Dharmasena and later authorities, acceded to the Crown’s submission.  Their Honours said (at 677):

“It is true that greater conceptual difficulties attended the task of a jury determining the guilt of both A and B on a joint trial for conspiring together (and with no one else) than in the case of separate trials.  A can only be convicted if the jury is satisfied beyond reasonable doubt on evidence admissible against him, inter alia, that A and B conspired together.  In essaying their duty in the case of B, the same jury which was satisfied of A’s guilt in conspiring with B may on evidence admissible against B fail to be satisfied beyond reasonable doubt that B did conspire with A.  The result is then that in the one trial the jury is saying at the same time that A is guilty of conspiring with B but B is not guilty of conspiring with A.  In reality, of course, the apparent phenomenon is readily explained in terms of the obligations of the jury to consider separately the guilt of the two accused on the basis only of the evidence admissible against each.”

Their Honours further said (at 678):

“In the light of the wealth of both academic and judicial consideration that has been devoted to this topic in recent years, we have no doubt that this Court should now redirect the common law of Australia on to its true course.  It should determine that the conviction of a conspirator whether tried together with or separately from an alleged co-conspirator may stand notwithstanding that the latter is or may be acquitted unless in all the circumstances of the case his conviction is inconsistent with the acquittal of the other person.  In our opinion such a determination will focus upon the justice of the case rather than upon the technical obscurities that now confound the subject.”

The High Court again considered the matter in the case of Adrian MacKenzie (1996) 90 A Crim R 468.  In the majority judgment it was said (at 482):

“. . . the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense.  Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.  If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.  In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt.  Alternatively, the appellate court may conclude that the jury took a “merciful” view of the facts upon one count:  a function which has always been open to, and often exercised by, juries.”

Their Honours also said (at 483-4):

“Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty.  More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law.  It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside.  It is impossible to state hard and fast rules.  It all depends upon the facts of the case.”

Their Honours also emphasised that the obligation to establish relevant inconsistency rested upon the person making the submission.

The question which presents itself for determination is whether the evidence against each accused in respect of the conspiracy charge is such that it may be truly said that the appellant’s conviction is “inconsistent with the acquittal” of Dien.  It is necessary, therefore, to consider the essential features of that evidence. 

There was of course evidence clearly common to the cases against each accused.  This included evidence of their prior relationship, including the fact that contact was obviously maintained between them even after they had divorced or separated.  There was no dispute that Dien from time to time visited the premises of 3 Toomey Place, stayed overnight and kept some of his clothes at the premises.  The journey to Hong Kong and Vietnam was undertaken by both of them with the child.  Moreover, as the crime alleged was conspiracy, all overt acts of either party which could reasonably be seen as having been undertaken in furtherance of the alleged conspiracy were admissible against each.  As the learned trial judge indicated in his charge to the jury, this meant that, for all practical purposes, all relevant events established by the evidence up to but not including the statements made by each accused to the police orally or by way of record of interview constituted evidence to be considered as against each.  Such evidence included the phone calls made from 3 Toomey Place to Hong Kong and vice versa, even though there was no suggestion in the evidence that they were made by anybody else than the appellant.  Also the fact that delivery of the heroin was made to the appellant’s premises in circumstances where only she had possession of it up to the time of its seizure by the police was evidence to be considered in the charge of conspiracy against each of them.

Other evidence needs to be considered.  The jury could have accepted that the appellant had made a phone call to Dien earlier on the day of the delivery asking that he come to her premises.  That such a phone call was made is supported by the evidence of one Ly Huu Le who was in the car with Dien when the two men came to the appellant’s premises after the delivery had taken place.  It does not appear that there was any evidence to suggest that the phone call had been made after the delivery.  The appellant had denied a phone call at that time in her interview with the police.  Ly Huu Le also gave evidence that Dien, after visiting the house for a brief period, returned to the car and appeared to be angry, apparently having had an argument with the appellant.  This was evidence in the case against both parties and was, of course, suggestive that the visit of Dien to the house was not in aid of any agreement relating to the receipt of the heroin delivery. 

Evidence was given through other persons relating to the occupation of the premises of 10 Frost Place, the address to which the undelivered package was directed.  This evidence connected Dien with those premises.  That and other evidence suggested that he made use of those premises from time to time as he did in respect of other premises mentioned in the evidence.  It sufficiently appears that the jury did not regard this evidence as connecting him with any conspiracy with the appellant in relation to the possession of the heroin delivered to 3 Toomey Place.  It did not appear to advance the case of conspiracy against either of them.  Even if it did, it was evidence against both of them.  Evidence was given of enquiries made by the police of a man named Tien Van Le, who was interviewed at Port Macquarie.  A mobile phone used by him had made frequent calls to and received calls from the Hong Kong mobile phone with which the appellant had made contact.  He obviously gave unsatisfactory answers in relation to those phone calls.  It appears that he may have been the addressee on the package delivered to 3 Toomey Place.  He could not be obtained as a witness at the hearing.  It does not appear that the evidence in relation to him established any connection between any activities that he may have undertaken and the co-accused Dien.  Conceivably it may have assisted inferences that the appellant was conspiring with him but it did nothing to link her in conspiracy with Dien.

Dien gave sworn evidence in the case.  He denied any conspiracy to import the heroin in question or have possession of it.  His evidence in relation to his relationship with the appellant, his residing at 3 Toomey Place while the marriage subsisted, his going to Hong Kong and Vietnam was consistent with what the appellant had told the police except that he said that he had paid for the trip.  His evidence as to visits to 3 Toomey Place to see his son was again consistent with what the appellant had told the police.  He swore that he had never used the telephone at 3 Toomey Place after his return from Vietnam and had not seen anyone else apart from the appellant at the premises.  He gave an innocent explanation of his visit to the premises on the day of the delivery consistent with the evidence of the other witness to whom we have made reference.  He denied having been told anything about the parcel, the Buddha or the heroin by the appellant.  He said, in effect, he didn’t know what heroin was and hadn’t seen it before.  It must be remembered that this was all sworn evidence in the case.  By their acquittal of him, it may be inferred that the jury was favourably impressed by it.  It necessarily operated not only in his favour but also in favour of the appellant on the question of whether there was a conspiracy between the two of them. 

We return to the question for decision.  On the whole of the evidence, was the conviction of the appellant inconsistent with the acquittal of Dien on the charge of conspiracy between them?  We have come to the conclusion that it was.  There was, in our opinion, no relevantly separate evidence against the appellant which could justify her conviction of conspiring with Dien.  The situation was simply that the same evidence in respect of the same charge had produced the conviction of one and the acquittal of the other.  It seems most likely to us that the jury placed considerable weight on the fact that she did not give evidence while Dien did.  However, the effect of Dien’s evidence was exculpatory for her as well as for him on the question of whether there had been a conspiracy between them.  It is most likely that the jury was very impressed with evidence that would suggest that she had conspired to receive the heroin into her possession.  It was quite obvious that such a conspiracy must have existed once it was established that she was criminally involved in the possession of the heroin.  However, the evidence did not point to the conspiracy having been with Dien.  Indeed, in light of the jury’s apparent acceptance of his evidence, it pointed the other way.

For these reasons, we have come to the conclusion that the appellant’s conviction on the count of conspiracy must be regarded as unsafe and unsatisfactory.  Accordingly, we uphold her appeal in this regard and quash her conviction on that count.

Fresh Evidence

Application was made to adduce fresh evidence pursuant to O 52, r 36 of the Federal Court Rules in terms of an affidavit of Shane Gill sworn on 29 September 1997.

There are three main considerations which a court of criminal appeal must consider in deciding whether a miscarriage of justice has occurred because evidence available at the time of the appeal was not led at the trial.  First, the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial.  The second consideration is whether the fresh evidence is apparently credible, or at least capable of belief.  The third consideration is whether the evidence, if believed, might reasonably have led the jury to return a different verdict.  Upon the third consideration, the test to be applied is whether the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial:  Gallagher v The Queen (1968) 160 CLR 392 at 399, 402 and 421.  See also Mickelberg v The Queen (1989) 167 CLR 259 at 273 per Mason CJ.

Counsel for the appellant submits that in the present case the significance of the information put forward in Mr Gill’s affidavit as fresh evidence must be assessed in the context of the hypotheses which were raised at trial.  The first hypothesis was that the appellant had been “set up” by the person in Hong Kong who had sent the parcels to 3 Toomey Place, Spence, and 10 Frost Place, Page.  This hypothesis was raised at trial against the background of the evidence of the telephone calls which had emanated from or been received by the Hong Kong mobile phone.  The records of these calls had been tendered as part of the prosecution case, and showed the 16 phone calls to which we have referred.  The hypothesis was that in these telephone conversations the appellant had been set up to become the innocent recipient of a parcel, presumably to be collected from her at a later date by a third party instructed by those knowingly involved in the importation.  The second hypothesis was the “decoy” hypothesis.

The information in the affidavit of Mr Gill was principally contained in a copy of an affidavit obtained by him from the United States of America (“the Mohrbacher affidavit”).  That affidavit had been sworn by an assistant US attorney in California, Jean M Mohrbacher, in support of a provisional arrest warrant in California for Bui Tai Huu and Bui Quong Thuan for detention pending a formal requisition for extradition to Australia.  The relevant charges in Australia were that Bui Tai Huu and Bui Quong Thuan together with Truong Hong Phuc and others (“the accused”) had committed the crimes of murder, conspiracy to murder, kidnapping and conspiracy to kidnap.  Bui Tai Huu was also charged with being knowingly concerned in the importation of heroin into Australia.  The Mohrbacher affidavit set out a long catalogue of allegations, including allegations made by an officer of the homicide squad in Victoria.  The allegations included that Truong Hong Phuc was believed to run a heroin operation between Asia and Australia.  The alleged kidnapping occurred in Melbourne on 29 April 1996, and the murder a few days later.  The victim of the kidnap and murder was a Mr Le, the son of a Mrs Ha.  The case against the accused would allege that Mr Le was kidnapped and murdered because Mrs Ha would not agree to allow Truong Hong Phuc to use her importing business as a cover for him to import heroin into Australia, and because she refused to pay a demand for money which was made when she declined to cooperate.  The execution of search warrants by police in Hong Kong on 4 May 1996 had established that the demand for money had been made to Mrs Ha by fax operated by “Happy Excel International” in Hong Kong.  The searches by Hong Kong police also led to the arrest on 4 May 1996 of Chiu Trieu Anh who was apparently the “Trieu Anh” referred to on the label on the parcel received by the appellant which stated the sender to be “Trieu Anh, Happy Excel International ...”.  The allegations in the Mohrbacher affidavit suggested that Chiu Trieu Anh was an associate of Truong Hong Phuc.

The allegations made against the accused included allegations of pressuring members of the Vietnamese community in Australia into assisting them in the importation of drugs, for example by making available to the accused mobile telephones, a car, a bank account, and other facilities.

The Mohrbacher affidavit also deposed that:

“On or about August 9, 1996, an individual named Nguyen Dinh Minh (‘Minh’), was arrested in Sydney and interviewed by law enforcement in connection with a controlled delivery of packages found to contain heroin, valued at $25 million, and originally sent from Bangkok.  Minh admitted that the heroin came from TRUONG, whom he had met in March in Sydney.  After that meeting when Minh tried to withdraw from helping TRUONG, TRUONG threatened to kill Minh and said ‘Look at the example in Melbourne ... A woman down there resisted our proposals and instructions.  So she had to collect all bad results of [sic] consequences.’...”

In the course of submissions to this Court, counsel for the appellant also sought to rely upon information relating to a case in New South Wales of R v Thao Ngoc Luong (District Court of New South Wales, Judge Graham, 13 April 1997) as fresh evidence.  The defendant Luong had pleaded guilty to an offence under s 233B(1)(c) of the Customs Act 1901 (Cth) in that she attempted to obtain possession of a prohibited import on 7 March 1996 at Sydney.  The details of the offence bore a close similarity to those alleged against the appellant.  The defendant had attempted to take possession of a package addressed to her from the International Mail Exchange.  The package was a cardboard box similarly wrapped to the two parcels the subject of the charges against the appellant, and containing two china “Lady Buddha” effigies packed with narcotics.  According to the prosecution case, the defendant had been driven to the mail exchange and supervised by another woman, Van Thuo Do-Lam.  Van Thuo Do-Lam is referred to in the Mohrbacher affidavit as a person associated with Truong Hong Phuc.

It is contended that if this “fresh evidence” had been known to the appellant at trial it would have been used by her counsel in cross-examining prosecution witnesses, and possibly directly proved in part, to show that there was substance in the two hypotheses being advanced on the appellant’s behalf.  Counsel submitted that the “fresh” element in the additional information disclosed that the parcel received by the appellant had been posted by a person involved in drug related activities, and, moreover, a person closely associated with a large and ruthless operation.  In addition it disclosed that those who controlled the same operation were associated with a $25 million importation into Australia a few months later.  This fact was said to show the likelihood that a bigger shipment may have come through the Mail Exchange in April 1996 at the same time as the parcel received by the appellant was being processed (the decoy hypothesis).  Counsel submitted the information would “add teeth” to the hypotheses argued before the jury.

It may be questioned how far the above information was “fresh evidence”.  It was known to the appellant’s counsel, and indeed was the subject of cross-examination at trial, that the attention of the postal authorities had been attracted to the two parcels the subject of the charges against the appellant by their similarity to a parcel that had earlier been intercepted in New South Wales containing a similarly concealed consignment of narcotics.  Further, in the course of the trial counsel for the appellant, during a voir dire cross-examination of Constable Carters about an entry in the phone records relating to the Hong Kong mobile phone, elicited information that there had been telephone calls to Mrs Ha.  The witness disclosed that inquiries were being conducted by the Victorian Police relating to the calls to Mrs Ha, but when asked if she knew the identity of the Hong Kong caller discovered by police investigations, Crown immunity was claimed.  However, before the jury, counsel for the appellant was allowed to ask the following questions:

“Constable Carters, could I ask you one general question in relation to your knowledge of the investigations made of the Melbourne numbers, Mai --- ?---indicating the answer, H-a.

Mai Ha.  Without going to the details of that investigation, is it the case given the name that she gave in Hong Kong is linked to an investigation that involves extortion, kidnapping and murder? --- That is correct, your Honour.”

The appellant and her co-accused had also been interviewed by Victorian Police investigating the murder of Mr Le before the commencement of the trial.  They were informed about the murder, and that the Victorian Police believed the persons involved were also involved in sending the heroin to them.  The appellant and her co-accused were shown a series of photographs and photofits of persons believed to be involved in the kidnapping and murder and asked if they were able to assist with the inquiries.  Both the appellant and the co-accused said they knew nothing about the matter.

It is, however, not necessary to decide the extent to which the information put forward in Mr Gill’s affidavit is “fresh evidence” as we are not satisfied that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the information been before it at the trial.

For the decoy hypothesis to constitute an hypothesis consistent with the innocence of the appellant, it would have to include the fact that the appellant was not herself a knowing recipient of the contents of the parcel received by her.  So, for either of the hypotheses advanced to be consistent with the innocence of the appellant, she would have to be an innocent recipient of the parcel.

The prosecution case established numerous phone calls between the Hong Kong mobile phone and 3 Toomey Place, Spence.  Some of the calls had been initiated from 3 Toomey Place, Spence.  The timing of the calls had a close temporal coincidence with the posting of the parcel in Hong Kong, and the subsequent discovery of the Buddha figure from the parcel by the police.  We consider the so called fresh evidence would have pointed towards the guilt, not the innocence, of the appellant.  The information would have shown that the telephone calls were with someone conducting a major heroin smuggling operation.  Reference to the facts of R v Thao Ngoc Luong would have shown that in a very similar importation the recipient had not been “set up” in the sense that she was an innocent recipient, but had been knowingly involved.  The additional information contains the type of evidence that an accused would usually seek to have excluded at trial to avoid the risk of the jury reasoning that there must be guilt by association.

If the defence of the appellant had been that she was the hapless victim of coercion and threats which caused her to be an unwilling, though knowing, participant in the delivery of the contraband parcel to 3 Toomey Place, Spence, the additional information may have been of assistance to her case.  However she has never put forward that she was the victim of pressure.  At all times in her interviews with the police she has denied any knowledge of the nature of the contents of the parcel, claiming that it arrived unexpectedly and was accepted by her as it was addressed to an acquaintance.  This was the defence presented on her behalf at trial, and which she still maintains.  The so called fresh evidence, so far as it would show the ruthless nature of those involved in the sending of the package, is not relevant to any issue raised by the defence at trial.

In our opinion, the application to call fresh evidence should be refused.

Sentence

The learned trial judge sentenced Mrs Le in respect of both charges to a head sentence of 10 years’ imprisonment, with a non-parole period of 6 years, both periods to commence from 12 April 1996, from which date the appellant had been continuously in custody.  Each charge carried a maximum sentence of 25 years’ imprisonment.

The consequence of our decision on the conspiracy count is that the applicant should be liable to sentence only on the possession charge.  However, in the circumstances of this case, that result of itself would require at best only a nominal reduction of the sentence for the possession charge:  the two alleged offences were inextricably interlinked and the evidence to show that the appellant conspired with others was crucial and powerful as to her possession of the heroin.

It was pointed out by the Director of Public Prosecutions that his Honour had made a slip as to the total quantity of heroin with which the applicant was implicated.  His Honour held that the appellant’s involvement should not be regarded as extending to the second parcel addressed to another Canberra residence.  His Honour therefore said that he would sentence

“on the factual basis that the jury found that the offender was guilty of a conspiracy [in the context, his Honour was speaking colloquially of the entire matter rather than technically] which resulted in her coming into possession of a mixture of heroin and other substances which was 79 per cent pure heroin and which contained a mass of 256.8 grams of heroin”.

The slip was that the mass given relates to the heroin posted to the other address.  The parcel posted to Mrs Le’s address contained 811 grams of heroin and the admixture had a purity of 76%.  It was not contested that, while the material actually received contained much less heroin, because most had been replaced with a harmless substance, the quantity and purity just stated were the relevant ones for sentencing purposes.  The Crown did not suggest that his Honour’s sentence was inappropriate for the correct quantity.

The principal difficulty we perceive with his Honour’s approach is that his Honour evidently took the view that in Suen (1986) 25 A Crim R 393 the majority of a Full Court of the Federal Court (Kelly and Neaves JJ) were intending to propose something of a “tariff” for cases involving high-grade heroin and/or otherwise indicating closeness of an offender to those responsible for its importation into Australia. 

In Suen, the maximum sentence for a similar charge (under legislation since repealed) was also 25 years.  The majority in the Full Court overturned a sentence of eight years with a non-parole period of four years and substituted a sentence of 13 years with an effective non-parole period of seven years.  The case was regarded as one in which “the sentence itself was so inadequate as to manifest error of itself” (p 396).  The Crown case was that the sentencing judge must have failed to take adequately into account both the quantity of heroin involved (131 grams, which at that time was the largest quantity of heroin seized in the ACT), and that:

“the purity . . . was such as to indicate that it came from a source that was very close to the top of the supply chain and, in Australia, possibly the very top of the supply chain after importation from South East Asia”(p 396)

The second factor was relied on by Kelly J, and Spender J in dissent found it necessary only to deal with that matter.  Neaves J did not explain in detail why he felt that the sentencing judge had erred. 

Kelly J remarked:

“I do not think that the fact that some other court might, for example, have imposed a sentence of ten years would warrant the setting aside of the sentence in question.”

Thus, Suen essentially involved a decision about the appropriate factual inference to be drawn in that case as to the proximity of the offender to the apex of responsibility for the entire criminal venture of supply and distribution of the heroin in question.  We do not read the majority judgments as purporting to lay down as discrete principles of sentencing that a large quantity or a high level of purity are determinative of a requirement that very severe sentencing be undertaken, although of course such factors will very often be of importance as aggravating a drug-dealing case. 

Nor do we think that the majority were essaying the task, historically thankless, of attempting to lay down a tariff of, say, 10 years as a head sentence whenever a large quantity of a drug such as heroin is found in the possession of somebody close to the ultimate organisers of the supply of heroin into the ACT.  As will emerge, we think that in the circumstances of the present case 10 years is an appropriate head sentence.  But by that judgment we intend to bind no other sentencing judge in any other case.  Our decision may or may not be useful in other cases as part of a broad pattern of sentencing to which other sentencers will usually have regard.  While it is proper that sentencing judges value consistency highly, sentencing is a discretionary exercise and the available range of a sound discretion will, inescapably, often be wide.

There is another difficulty about applying “standards” thought to have been established in cases such as Suen which preceded the “truth in sentencing” legislation.  Dealing with the NSW legislation embodying that principle, the NSW Court of Criminal Appeal (Gleeson CJ, Hunt and Loveday JJ) said in Maclay (1990) 19 NSWLR 112 at 126:

“It is, of course, understandable that a judge may wish to have regard to sentencing patterns, including his or her own sentencing patterns, established under previous legislation; . . .  Some caution will need to be exercised in translating such sentencing patterns into actual decisions under the new legislation.  Statistical information is occasionally advanced in

support of the contention that some judges may have responded subconsciously to the problem of the “fictional element” introduced in the 1983 legislation . . . by increasing non-parole periods in a way that to some extent “took account” of the remissions system, but if that were true it would only increase the need for caution to which we have referred.  The question as to how prison terms resulting from sentences imposed under the new Act will compare with those resulting from earlier sentences is one, the answer to which will emerge in due time.  Pre-conceptions as to how they should compare cannot be allowed to dominate the appreciation of the new statute.”

A new sentencing regime was introduced in the ACT in 1993 and it is that regime, and no other, to which, in the end, present day ACT sentencers must give effect.  That regime includes the requirements that the sentence “shall be just and appropriate”:  s 429(1) Crime Act 1900 (ACT), and that the sentencing court have regard to “current sentencing practice” (emphasis added):  s 429(1)(t).

Finally, Suen’s case was not this case.  We state below our view of Mrs Le’s relative level of culpability. 

It seems obvious from what the sentencing judge said in this case that he felt that his approach was constrained by Suen.  Thus his Honour said:

“On the face of it, this serious offence calls for an immediate custodial sentence of some seven to eight years with an appropriate non-parole period and were it not for the decision of the Full Court of the Federal Court of Australia in the appeal of William Suen on 2 June 1987, I would have little hesitation in imposing a sentence of that sort of length.”

and

“Although the decision in Suen was a majority decision with Spender J, dissenting, and although it appears to me to be out of step with the range of sentences previously imposed by this Court, and out of step with the range of sentences approved or imposed by Courts of Criminal Appeal in more recent times elsewhere in Australia, it is for the Full Court of the Federal Court to decide whether or not to maintain or remove the constraints that the decision in Suen’s case places upon sentencing judges in this Territory.”

In our view, in his evident anxiety to pay proper respect to a Full Court decision, his Honour fell into error.  Suen, in our opinion, imposed and imposes no “constraint” upon present day ACT sentencers.

It follows that we should re-sentence Mrs Le.  The amount of heroin involved was large, though regrettably, by present-day Australian standards, not in a category that one would call very large.  Mrs Le offered no explanation of her role.  We can and should draw the inference beyond reasonable doubt that she participated with a view to substantial financial gain.  The case is obviously a very serious one.  However, the facts are consistent with her being not more than a trusted instrument of others.  She had not, for example, opened the figurine to inspect the heroin; it could be inferred that that and subsequent distribution were tasks for others.  Her vulnerability as a lone parent of a handicapped child, apparently living in modest circumstances, may well have recommended her for such a subordinate role to the extremely sinister South East Asian exporter or exporters of the heroin.  She is entitled to be sentenced upon the basis that her role was not more important than that stated.  Nevertheless, a too low sentence might tend to encourage the enlistment of other vulnerable people.

As to Mrs Le’s own personal background, she was a first offender and a young woman who had suffered much:  a refugee from Vietnam, the mother and principal emotional support of a child semi-paralysed from birth, a wife battered by a jealous husband.  In the ACT regard is to be had to the effect the sentence for Mrs Le will have upon the child.  The effect of a long sentence is likely to be very serious but, as his Honour indicated, that cannot be avoided.  It is right however that we do as much as we can to minimise that effect, especially by minimising the non-parole period, within the limits of responsibility and recognising the overriding seriousness of Mrs Le’s crime.

We have given anxious consideration to his Honour’s indication of the approach that commended itself to him but for the influence upon him of Suen.  However we regrettably differ in relation to the head sentence.  This was an elaborate and well-planned venture, in which Mrs Le considerably and actively participated for over a month.  She may not have been a principal, but she was a trusted and active minion;  without such, the principals cannot flourish.  There is nothing to suggest that she was under any pressure other than her own modest circumstances and her concern for her child.  A large amount of heroin was involved.  Mrs Le is not entitled to any reduction of her sentence on account of any contrition:  consistently with her claim of innocence, she has shown none.  The case is one that calls for a head sentence that will amply mark the community’s abhorrence of substantial drug-dealing.  We think that not less than 10 years imprisonment will suffice.

As to the non-parole period, it is of relevance that Mrs Le was a vulnerable young woman and first offender.  Of much greater significance however is that regard must be paid, as we have indicated, to minimising the inescapable trauma of her imprisonment for her unfortunate child.  Also of considerable importance, as his Honour recognised, is the fact that the suffering of her child will make Mrs Le’s own time in custody “all the more onerous for her”.  Nevertheless, as we have indicated, an approach must be taken which recognises our overriding responsibility to see that the seriousness of the crime is reflected in what may well be the effective penalty for the appellant.  We do not believe that a non-parole period of less than 4½ years imprisonment would give due weight to that consideration.  We would add that we discern no significant difference in this approach to the question of the non-parole period from that which seems to have commended itself to his Honour, had he not felt constrained by Suen.

In the result, the appeal against conviction will be allowed in part.  The conviction for conspiracy is set aside and in lieu thereof a verdict of acquittal is entered.  The conviction for possession of a trafficable quantity of heroin for the purpose of supply is confirmed.  The appeal against sentence is also allowed in part by varying the non-parole period from a period of 6 years to a period of 4½ years.  The sentence is otherwise confirmed.  Time served is to count.

Associate:        

Date:                24 October 1997

Appearances

Counsel for the Applicant:             T J O’Donnell

Solicitor for the Applicant:             Legal Aid Office (ACT)

Counsel for the Respondent:         T Buddin SC

Solicitors for the Respondent:        Office of the Director of Public Prosecutions

Date of hearing:                            20 October 1997

Date of judgment:                         24 October 1997