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R v Philip Ng
[2002] VSCA 108

(Judgment by: Winneke P, Batt JA, Eames JA)

R
vPhilip Ng

Court:

Supreme Court of Victoria

Subject References:
Criminal law
Conspiracy to import large quantities of heroin
Whether applicant denied constitutional right to 'trial by jury' by reason of empanelment of 'additional jurors' pursuant to the Juries Act 1967 (Vic)
s14(2), s14A and s48A
Evidence
Use of listening device obtained by warrant purporting to be issued under s219B(5) of the Customs Act 1901 (Cth)
Whether warrant valid
Whether trial judge correct in applying s46(1)(b) of the Acts Interpretation Act 1901 (Cth) to validate warrant
Admissibility of portions of record of interview
Whether answers 'voluntary'
Whether judge obliged to exclude answers in exercise of discretion
s23G and s23S Crimes Act 1914 (Cth) discussed
Conspiracy
Sufficiency of evidence of overt acts in relation to particular importations discussed
Sentence
Parity of sentence with co-offender discussed

Legislative References:
Customs Act 1901 - s 233B(1)(cb); s 219B(5)
Crimes Act 1914 - s 10; s 23G
Acts (Interpretation) Act 1901 - s 46(1)(b)
Judiciary Act 1903 - s 79
Juries Act 1967 (Vic) - s 8; s 10; s 14(2); s 14A; s 20; s 32; s 33; s 48A
County Court Act 1958 - s 80
National Crime Authority Act 1984 - s 13
New South Wales Interpretation Act 1987 - s 32
Imperial Interpretation Act 1889 - s 31
Crimes Act 1958 - s 568(1)
Commonwealth Crimes Act 1914 - s 23S

Case References:
-

Hearing date: 20 and 21 May 2002
Judgment date: 2 August 2002

Judgment by:
Winneke P
Batt JA
Eames JA

[1] On 11 July 2000, after a trial lasting nearly four months, the applicant Philip Ng - who is now aged 45 years - was convicted by a jury at the County Court in Melbourne of conspiring with others to import substantial quantities of heroin (in excess of "commercial quantities") into Australia contrary to s233B(1)(cb) of the Customs Act 1901 (Cth.). He was jointly tried with an alleged fellow conspirator, Derek Alan Bowhay, whom the jury acquitted. A further co-conspirator, Wai Man Li, had pleaded guilty to participation in the alleged conspiracy when first arraigned before the trial judge in March 1998. He had made admissions as to relevant facts which the judge had before him for sentencing purposes on 11 July 2000. Following pleas made on behalf of the applicant and Li, the judge, on 4 August 2000, sentenced the applicant to 25 years' imprisonment with a non-parole period of 20 years; and sentenced Li to a period of 21 years' imprisonment with a non-parole period of 16 years.

[2] The applicant has applied for leave to appeal against both his conviction and sentence. Before turning to the grounds of these applications, it is both necessary and desirable for us to briefly rehearse the evidence which it was open to the jury to accept. In doing so, we will not aspire to canvass all the material which the jury was invited to examine, but sufficient of it to provide an intelligible backdrop to the grounds of appeal which were argued in this Court.

[3] The indictment charged that, between 1 April 1996 and 14 October 1996, the applicant, Li and Bowhay conspired together and with Wanchai Khojaranusat ("Wanchai") and divers other persons to import into Australia narcotic goods consisting of not less than a commercial quantity of heroin. As we have said, the conspiracy alleged constituted an offence contrary to s233B(1)(cb) of the Customs Act (Cth.). In conformity with the decisions in Kingswell v The Queen ^[1] and The Queen v Meaton ^[2] , the indictment alleged that the conspiracy was one in which the conspirators agreed to import quantities of heroin exceeding the prescribed commercial quantity of 1.5 kg. Upon proof of such an offence, the maximum penalty prescribed by s235(2)(c) of the Act is life imprisonment.

[4] It was the Crown case that the alleged conspirators agreed to periodically ferry into Australia large quantities of high quality heroin from Thailand. The agreement involved, so it was alleged, the periodic telegraphic transfer to Thailand (and in one instance Hong Kong) of large sums of money either as payment on account of heroin imported or to be imported or as profits derived from the sale of heroin in this country. Each of the conspirators, on the Crown case, had differing roles to play. The applicant and Li were the organizers and managers of importation and distribution from the "Australian end"; Bowhay was the courier employed to oversee the actual importations, or, at least, some of them; and Wanchai was the person responsible for the transfer of moneys to Thailand, which he did from banks in Surfers Paradise through the agency of students recruited from Bond University. By these means, so the evidence showed, Wanchai transferred to Thailand more than $2.5 million cash in the period between 1 July 1996 and the end of September 1996. Specifically the Crown alleged as overt acts of the conspiracy three importations during its existence; one in August 1996, the second in September 1996 and the third in October 1996.

[5] The conspiracy came to an end between 10 and 13 October 1996 when the applicant, Li and Bowhay were effectively caught "red-handed" in the act of importing the October shipment of heroin. For a period of some months a task-force of Commonwealth police and customs officers and Victorian police officers had been tracking the movements of the applicant, Li and Wanchai. In September they became aware that Bowhay had entered Australia on 16 September carrying with him, as accompanying baggage, a wooden crate containing 2 Thai-crafted wooden wall plaques, which he had declared to Customs and presented to quarantine officers to check for insect infestation. He was allowed to enter the country. It was only after he had departed the country that the task-force discovered the link between Bowhay on the one hand and the applicant and Li on the other. On 18 September the task-force had observed the applicant drive his vehicle to Li's premises at Unit 6, 570 Buckley Street, Keilor East. At the time Li was not in Australia, having left at the end of August for Malaysia and Hong Kong. The applicant drove into the premises and was later observed to drive from them to a shopping centre nearby where he threw some large cardboard boxes into a "dump-master bin". When these boxes were retrieved by members of the task-force, they were found to contain the remains of two wooden wall plaques which had been split in half. Forensic testing disclosed traces of heroin adhering to the inside surfaces. Inquiries revealed that they had been brought into the country by Bowhay; but by the time that knowledge was gained, Bowhay had left the country. Nonetheless, customs were placed on alert for his re-entry and when he returned on 10 October 1996 he was placed under surveillance. On this occasion he had with him, as unaccompanied baggage, two crates containing four wall plaques, which he arranged to be forwarded to him at the Savoy Plaza Hotel in Spencer Street. These plaques were taken, initially, into police custody and carefully opened. Each was found to contain approximately 6 kg. of compressed heroin of 80% purity. The police removed most of the heroin; substituted the bulk with an innocuous substance but replaced small quantities of it in plastic bags; inserted a listening device into one of the plaques; and then put them back together for a "controlled delivery".

[6] On the same day as Bowhay had brought the heroin into Australia, namely 10 October, Li had arrived back into the country, albeit on a different flight. He was met at the airport by the applicant, and the two of them were kept under observation pending the "controlled delivery" to Bowhay at the Savoy Plaza on 12 October. On that day the crates containing the wall plaques were delivered to Bowhay at the hotel, and later in the evening Li and the applicant arrived to take possession of them. They were then followed to Li's premises at 570 Buckley Street, Keilor East where the crates were seen to be removed and placed into the garage. The applicant and Li then left the premises in Li's car and were followed to different places where they were observed to meet with various persons, one of whom was Nezir Nezirovski who, on the Crown case, was a "purchasing contact" after heroin shipments were brought into the country. After this meeting the applicant and Li returned to the premises at Buckley Street where, through the implanted listening device, they were heard to be opening the wooden wall plaques. In the early hours of the morning of 13 October the police raided the premises. The applicant and Li attempted to flee. The applicant was carrying one of the wall plaques and was found to have in his pocket the transistor listening device which had been in the plaque. In the premises at Keilor East the police found trappings usually associated with drug trafficking including sets of scales, mobile phones and money. In a box, police found $279,850 in Australian currency. When they raided the applicant's premises at 450 Victoria Street, North Melbourne, they found nearly $600,000 in cash in a suit case.

[7] That, as we have said, was the end of the conspiracy. The applicant, Li and Bowhay were taken into custody. By this time Wanchai had left the country for his native Thailand, where he remains. The applicant was interviewed by police after his arrest at the federal police headquarters in Latrobe Street. He was afforded his "rights" in accordance with s23G of the Crimes Act 1914 (Cth.), save that the police would not permit him to contact persons other than a solicitor. During the course of the interview he gave many answers which the Crown alleged were false, as to matters such as his address, his marital status, his occupation, his income and his relationship with Li. When the police commenced to ask about the events which occurred at Buckley Street where he was arrested, the applicant told them that he had nothing to say and would "wait":

"until my solicitor come tomorrow and then he can answer everything. Is that all right? Because ... I have my right not to answer anything."

The police said that that was his right but said they would continue to ask questions and that if he did not wish to respond, that was "entirely up to [him]".

The questioning continued. On some occasions the applicant exercised his right not to answer; on others he gave answers. Some of these answers, the Crown contended, were patently false. At the trial it was submitted on the applicant's behalf that the police had violated the applicant's rights by continuing to ask questions after the applicant had informed them that he wished to say nothing further until his solicitor came. The judge ruled that the whole record of interview should be admitted into evidence. We will need to re-visit the circumstances of this interview in more detail hereafter when considering the grounds of appeal.

[8] Bowhay and Li were also interviewed. Bowhay, a British citizen who claimed to have been recruited in Bangkok, said that he was totally unaware that the plaques which he carried into the country contained heroin; and that the fact that he was only being paid £2,000 to carry them in convinced him that, whatever he was carrying (he thought it was currency), it was certainly not narcotics. That story was good enough to raise a doubt in the jury's mind. Li, on the other hand, knew that he had been caught "red-handed" and ultimately pleaded guilty, admitting facts in a prepared statement which was put before the judge for the purpose of sentencing. Those facts demonstrated that he was a citizen of Hong Kong who had come to this country in June 1996, rented the premises at Buckley Street in East Keilor for the purposes of organizing, from the "Australian end", the importations of heroin in August, September and October 1996. He also conceded his knowledge of and relationship with the applicant and Wanchai. These admitted facts, of course, were no part of the evidence against the applicant.

[9] Although the prosecution did not have any direct and physical evidence of a quantity of heroin imported in August, or the courier, or the method of concealment, it nevertheless invited the jury to infer that, as an overt act of the conspiracy which it alleged, there was in fact an importation of heroin in that month. That inference, so the prosecution alleged, could be drawn from the surrounding evidence including the pattern of money transfers commencing at the end of June 1996, and concluding in mid-September; the relationship between Wanchai, on the one hand, and Li and the applicant on the other; the meeting between Wanchai and Li at Collins Mitsubishi on 16 August 1996 in the course of which Wanchai organized a purchase of a new car for Li in a false name, and of a false address - a car to be delivered on 20 August 1996; a meeting between the applicant and Nezirovski on 18 August, during which the applicant received from him a "package", and following which he returned to the premises at Edgevale Road, Kew, which the applicant had rented in the name of a company of which he and Li were directors; the evidence of the meeting between Li and the applicant on the one hand and three Asian males on the other, in Cromwell Road, South Yarra, on 18 August, following which Li and the applicant drove the Asian males to the Novotel Hotel in the city and returned to the premises at Edgevale Road, Kew; the evidence of the recorded conversations between Li and the applicant at those premises, in which a listening device, in accordance with a warrant obtained, had been placed by the task-force. The content of the conversations related to the splitting of profits, so the Crown alleged. The prosecution further relied upon a meeting between Li and Wanchai and another Asian male at the Novotel on 19 August where a calculator and a mobile phone were used; upon the payment of cash on 20 August to Collins Mitsubishi for the car earlier agreed to be purchased by Li; and upon the meeting between the applicant and Nezirovski at the Edgevale Road premises on 21 August in which a discussion ensued which, so the prosecution alleged, was a discussion relating to the purchase of drugs, with Nezirovski saying:

"I've got 35 grand at home, and a couple of the boys gotta give me 5 each tomorrow. So I'm going to have 45. So give us the next one 200 even."

The prosecution further relied on the fact that, on or about 21 August, Wanchai returned to the Gold Coast where, on that and the following day, he organized for $630,000 in cash to be repatriated to Thailand.

[10] The prosecution contended that when this body of evidence was looked at in the context of what was known to have occurred in September and October, and in the context of the fact that Li and the applicant had no other apparent occupation than heroin importers, the jury should be content to infer that there had been a heroin importation in August 1996 notwithstanding the lack of direct evidence of the quantity of narcotics imported in that month or the means chosen to import it. Indeed the most the prosecution could allege to the jury - and this is what it did - was that the quantity of heroin in fact brought into the country by Bowhay in October (namely a little less than "20 kg pure") was "at least" the quantity imported during the currency of the conspiracy.

[11] It is apparent from the nature of the case made by the prosecution, to which we have adverted, that the evidence led in its support came from a variety of sources and from a large number of witnesses. There was, for example, evidence from the many investigators who were, or had been, members of the task-force. There was evidence from persons involved in selling or leasing to the applicant, or companies with which he was involved, premises which - so the Crown alleged - were used by him and others for the purpose of furthering the conspiracy. We have mentioned the premises at 450 Victoria Street, East Melbourne, and the premises in Edgevale Road, Kew. But there was also evidence that, in the course of 1996, the applicant had purchased premises at 7 Studley Avenue, Kew, and had paid $400,000 (by eight separate cheques of $50,000 each) for the purpose of doing so. This was additional to $45,000 which had been paid to the agent as a deposit. The evidence was that the Edgevale Road premises were leased in the name of a company, Ordosolve Pty Ltd, in which - so the evidence suggested - both Li and the applicant had an interest. A listening device which had been authorized by warrant issued by a Federal Court judge on 30 July 1996, was placed in these premises. Conversations which were recorded, by means of the device, between Li and the applicant and between the applicant and others were introduced into evidence. Some of them were in the Cantonese dialect. Evidence as to their translation was given by an interpreter. (The validity of the warrant and the true meaning of what was said were the subject of contest at the trial.) Furthermore, there were many witnesses called to give evidence relating to the surveillance of the conspirators during the relevant months. Many of their observations, and the significance ascribed to them by the prosecution, were also the subject of challenge at the trial.

[12] Sworn evidence was given by the applicant in his own defence. He also called a number of other witnesses. It was the applicant's case that he did not conspire with others, either in 1996 or at any other time, to import heroin into Australia. He had come to Australia from Malaysia some 20 years before and had applied himself to working in various businesses and to property investment. In the late 1980's he had purchased a number of shops in West Melbourne including a "coin laundrette", a "back-packer" establishment and a "second-hand business". Ultimately, he incurred losses in the early 1990's and, in or about 1992, he established a business of selling vitamins and supplements for race-horses to owners in Malaysia. Furthermore, he established a business of selling cranes and machinery to industry in Malaysia. In 1993 he had entered into a joint venture arrangement with the Chinese government to establish a factory to manufacture veterinary products. These businesses were "going well" late in 1995 when he sold his veterinary business to one Gilbert Chan for $300,000. Chan was a Malaysian. This money was paid in cash and was brought in smaller amounts into Australia by friends of Chan. This accounted for some of the cash found by police at Victoria Street. He also sold to Chan, in 1996, some machinery for $350,000. This also accounted for some of the cash found in Victoria Street. Ordosolve Pty Ltd, the applicant said, was formed with Li in 1995 to engage in legitimate works of selling and installing "road reflectors". It was only when he and his wife separated in 1995 that he needed alternative accommodation and used "Ordosolve" to lease the Edgevale Road premises. He knew Nezirovski as the owner of a "detergent business" and the meeting which he had with him on 18 August 1996 was for the purpose of looking at a "washing product" sample. The "package" which Nezirovski was seen to hand to him was full of rags which were for his dogs to sleep on. He explained the visit to Li's home on 18 September 1996 as a favour to Li, who was absent from Australia and wanted his mail collected. He had seen that the garage door was "partly open" and that there were wood, cartons and other debris on the floor which he cleaned up and took to the nearby shopping centre to put in the dump-master. The applicant said that the property at Studley Avenue, Kew, was purchased as part of an investment venture with people in Malaysia, so that accommodation could be provided for the investors' children coming to Melbourne to study. The individual payments of $50,000 which had been used to buy the property came from the investors.

[13] The applicant explained the content of recorded conversations at Edgevale Road as having an innocent genesis, mainly related to activities concerned with abalone fishing (and "poaching") and the detergent and laundry business. The applicant further explained his presence at the Savoy Hotel on 12 October as a favour to Li. The applicant said that he did not know Bowhay and that he left Li's car to collect the package at Li's request; and he had no idea what was in it. He went to Li's premises in East Keilor at Li's request because Li said the packages were too heavy for him to unload from the car by himself. Having unloaded the crates he had agreed to drive with Li to collect Nezirovski in Collingwood and then go on to Kew before driving back to Keilor. He said he was, by then, feeling unwell and had gone upstairs to rest. He had later come downstairs to see Li unwrapping "a painting" in the lounge-room. Li had asked him to assist in taking the "paintings" out to the garage. As he took one of them out, he saw two unmarked cars come into the driveway. Because he had been assaulted at night once before, he had panicked and dropped the painting. He had sought to walk quickly from the direction of his "assailants". He realised, only then, that they were police. He saw something on the ground which a police officer said was in his pocket. This was the listening device which the applicant claimed not to have seen before. He said he was taken into the house and advised of his "rights", which he said he wished to exercise.

[14] Various witnesses were called in support of the applicant's case. Gilbert Chan said that he came to know the applicant in or about 1987, through his brother. In 1990 they commenced to do some "investment business" in Malaysia, including property development, importing and exporting vitamin pills and importing abalone with a view to exporting it to Indonesia and Singapore. Also, Chan said, they exported cranes from Australia to Vietnam and Korea, as well as tractors. Chan said that, over the years, he had paid the applicant over $1 million. Chan said that he did not have the documentation which attended the sale of cranes; but that the applicant would have those documents, including shipping documents. The applicant's brother, Tony, gave evidence that, in the early 1990's, the applicant came to Malaysia to sell abalone, vitamins, horse-feed and cranes. One, Leonard Heyde, gave evidence that he was a machinery dealer who had met the applicant in or about 1995. The applicant had endeavoured to obtain his assistance in purchasing abalone and, later, to secure his aid in selling mobile cranes. Heyde said that he had been in the crane business for 40 years; and that the applicant knew little or nothing about it. He did no business with the applicant. Finally, a Robert Windspear gave evidence that he ran an export business out of Australia and had become acquainted with the applicant in the late 1980's. The applicant had spoken to him about the export of abalone but, so far as he could recall, he had never done any business with the applicant. Windspear had a research company which had developed a "foam product" which did not contain "CFC's", and he had spoken to the applicant about exporting that product to Malaysia. In 1994 the applicant had introduced him to a number of "interested" people in Malaysia but nothing in the way of business eventuated.

[15] All of the evidence to which we have referred was fully and fairly summarized for the jury by the trial judge. Against its background, we can now turn to the grounds of the application for leave to appeal against the conviction. None of those grounds challenge his Honour's directions to the jury. Rather they challenge rulings as to practice, procedure and evidence made during the lengthy trial. Initially 16 grounds were taken but five were abandoned at the outset of the hearing. The remaining 11 grounds are as follows:

1.

The judge erred in law by holding that s48A of the Juries Act (Vic) did not offend one of the essential features of trial by jury, guaranteed by s80 of the Constitution, namely randomness in the selection of a jury.

2.

The judge erred in law by holding that s48A of the Juries Act (Vic) did not offend one of the essential features of trial by jury guaranteed by s80 of the Constitution, namely the right and duty of all jurors [in this case 15] to participate in the verdict unless discharged for reasonable cause.

3.

The judge erred in law by holding that, insofar as s48A permits the reduction of 15 jurors to 12, it did not offend the principle of unanimity guaranteed by s80 of the Constitution.

4.

The judge erred in law by holding that, insofar as s48A of the Juries Act (Vic) immunises the foreperson from being balloted out of the jury, it did not offend an essential feature of trial by jury guaranteed by s80 of the Constitution, namely the equality of each juror's vote in relation to the verdict.

6.

The judge erred in law by holding that the warrant dated 30 July 1999 (sic) was legally valid. His Honour further erred in law by holding that s46(1)(b) of the Acts (Interpretation) Act 1901 (Cth) was applicable to the aforesaid warrant.

7.

The judge erred in law in holding that evidence of money in the sum of $2.5 million transferred to Bangkok and Hong Kong from Australia was relevant and admissible.

9.

The judge erred in law by holding that all "Questions" from "Question 267" in the record of interview should not be excluded from the evidence.

11.

The judge erred in law by ruling as relevant and admissible the evidence of an alleged importation of illegal drugs in August 1996.

12.

The judge erred in law by ruling that evidence concerning a person named Nezir Nezirovski was relevant and admissible.

14.

The judge erred in law by holding that there had been full compliance, as a matter of law, with s14(2) and s14A of the Juries Act (Vic).

16.

The judge erred in law by holding that, to the extent that s48A(4) of the Juries Act (Vic) protected the foreman of the jury from being:-

(a): balloted out of the jury;
(b): the foreman's card not being counted as part of the final ballot;

the applicant has not been afforded his constitutional guarantee for a fair trial, mandated by Ch III of the Constitution.

Grounds 1-4, 16

[16] It has become a familiar feature of appeals against conviction by those charged with "Commonwealth offences", for the applicant to assert that the trial has miscarried because certain procedures, mandated by the laws of the State in which the trial is conducted, have infringed the applicant's right to a "trial ... by jury" in accordance with s80 of the Constitution (Cth.). In this case Mr Wendler contended, both before the trial judge and this Court, that the application of s14(2), s14A and s48A of the Juries Act 1967 (Vic) (as amended) ^[3] , picked up by s68(1) and s79 of the Judiciary Act 1903 (Cth), makes provision for a species of trial by jury which is inconsistent with the requirements of s80 of the Constitution. The sections - as they stood at the relevant time - read as follows:

S14 : Civil and Criminal Juries

"(1) ...

(2) A criminal inquest in the Supreme Court or the County Court is to be tried by a jury of 12 or, where the court makes an order in accordance with s14A, by a jury of not more than 15."

S14A : Impanelment of additional jurors

"A court before which a criminal inquest is to be heard may order the impanelment of up to 3 additional jurors in that inquest before the jury is impanelled for any reason that appears to the court to be good and sufficient."

S48A : Ballot of Jurors where more than 12

"(1)
Where more than 12 jurors have been impanelled and remain at any time at which the jury is required to retire to consider its verdict a ballot must be held in accordance with subs(2) to reduce the number to 12 before the jury retires to consider its verdict.

(2)
A ballot referred to in subs(1) must be conducted by drawing at random the number of cards necessary to reduce the number of jurors to 12 from those cards kept apart in accordance with s48(1).

(3)
Subject to subs(4), and unless the juror or jurors are, in accordance with subs(3A), to return to the jury, and continue as part of it for the continuation of the trial, the juror or jurors whose cards are drawn must be excused and their cards returned to the box for further use unless the Court otherwise orders.

(3A) If the trial is not concluded after the verdict is given (whether because it is not in respect of all accused persons or not in respect of all the counts in the presentment), the juror or jurors whose cards were drawn must then return to the jury, and continue as part of it, for the continuation of the trial.

(3B) A fresh ballot must be held in accordance with subs(2) each time the jury is required to consider its verdict.

(4)
If the card of the foreperson is drawn, that card is to be kept apart, and another card drawn.

(5)
The cards of the 12 jurors including the card of the foreperson must be kept apart until a verdict has been given or until the jurors are discharged.

(6)
Unless the Court otherwise orders the cards of the 12 jurors must be returned to the box for further use."

[17] These legislative provisions, as their form and content suggests, were designed to combat the modern phenomenon of the "mega-trial" where, as a consequence of the sheer length of the trial and complications thereby caused, jurors are "wasted" to the point where the trial has to be aborted because the number of jurors has fallen below the minimum of 10 required to return a verdict (S44). These points were made clear by the Attorney-General who introduced the amendments in 1990, in his second reading speech ^[4] . All States and Territories in Australia (save New South Wales) have followed suit, and have provided for what are generally described as "additional jurors" or "reserve jurors"; and for the same or similar purposes for which the provisions were introduced into this State ^[5] . The provisions so introduced into the legislation of the said States and Territories have, in common, the features that the court of trial has the power to direct or order between 1 and 6 additional or reserve jurors and that the jurors are to be empanelled and sworn as jurors in the manner provided by the legislation. Each provision is designed to ensure that, at the time when the jury retires to deliberate, there will remain to deliver a verdict the minimum number of jurors (not exceeding 12) which the respective statutes require to deliver a verdict. In this State it has been conventional to regard 12 jurors as the optimum number to return the verdict in a criminal inquest. It is the long-standing right of those charged with serious crime to be tried by a jury of 12 persons ^[6] which underlies these provisions. The legislation in Tasmania, Queensland, Western Australia and the Northern Territory provides for the empanelment of "reserve jurors" who are designated as such and will take their place on the jury (either in the order of call or by ballot) in the event that a juror dies or is discharged for cause. When the jury retires to consider its verdict the remaining "reserve jurors" are discharged. In the Australian Capital Territory, Victoria and South Australia the "additional" jurors are part of the jury - a device aimed at ensuring that all jurors approach the trial on the basis that they may form part of those who retire to deliberate ^[7] . Thus, if at the time when the jury retires to consider its verdict, more than 12 jurors remain, a ballot is conducted for the purpose of reducing the jury to 12 members. In Victoria and South Australia the foreperson is excluded from being balloted off.

[18] It is the process now adopted in this State for empanelling additional jurors, and excluding the number exceeding 12 by ballot at the time for retirement (but excluding from the ballot the foreperson), which is at the heart of the applicant's constitutional argument. In conformity with the provisions of s78B of the Judiciary Act, notice was given of the constitutional issues proposed to be raised in this Court by the applicant to the respective Attorneys-General of the Commonwealth and States. Only the Attorney-General for the State of Victoria has intervened. Each of the other Attorneys-General has advised that he does not propose to intervene at this stage, subject to re-consideration should the issue ultimately go to the High Court.

[19] Thus, the Court has had the benefit of submissions on the constitutional issue raised by these grounds from Mr Wendler on behalf of the applicant, from Mr Robinson on behalf of the respondent, and from Ms Doyle on behalf of the Attorney-General (Vic). Because the argument was discrete from the argument on the other grounds and involved submissions from the three parties who had an interest in it, the Court entertained the argument on these grounds in advance of argument on the remaining grounds.

[20] The applicant's grounds of appeal assert that the trial judge was wrong in law in holding that s48A of the Juries Act (Vic) did not offend a number of what were submitted to be "essential features of trial by jury guaranteed by s80 of the Constitution", namely:

(a): randomness in the selection of the jury (ground 1);
(b): the right and duty of all jurors (in this case 15) to participate in the verdict unless discharged for reasonable cause (ground 2);
(c): the principle of unanimity (ground 3);
(d): by "immunizing" the foreperson from being "balloted off", the equality of each juror's vote in relation to the verdict (ground 4).

Further, or in the alternative, ground 16 of the grounds of appeal asserted that, by protecting the foreperson of the jury from the ballot, the applicant had "not been afforded his constitutional guarantee of a fair trial, mandated by Ch III of the Constitution".

[21] Mr Wendler, who had appeared for the applicant at the trial, had - early in the trial - foreshadowed to the trial judge that he "might raise a constitutional issue" in the event that a ballot was required and the name of the foreperson was called; but submitted that the matter would not arise until those events occurred. The judge, understandably, took the view that it would be undesirable to wait until the end of a lengthy trial to agitate the issue and it was agreed that the issues should be debated, following the giving of notice to the relevant Attorneys-General, on the assumption that the events predicated by Mr Wendler occurred. None of the Attorneys wished to intervene at that stage, and submissions were made to his Honour early in May 2000. His Honour, in a comprehensive ruling delivered on 8 May 2000, concluded that the relevant provisions of the Juries Act (Vic) did not infringe the constitutional requirements of "trial by jury" mandated by s80. In the course of giving that ruling, his Honour noted that there had been two previous trials of the accused before him which had aborted for different reasons and that it was by agreement of all counsel that 15 jurors had been empanelled for the current trial as an "insurance" against further mishaps. At the end of his ruling his Honour said that he had ordered the empanelment of 15 jurors "bearing in mind that all counsel sought that 15 jurors be empanelled". Although his Honour had ruled that the provisions of s14A and s48A of the Juries Act were not incompatible with the "trial ... by jury" mandated by s80 of the Constitution, he nevertheless went on to say that "by their conduct each accused and his counsel have ... waived their right to object to what has occurred". Although no specific ground of appeal has been directed towards this latter aspect of his Honour's ruling, it would seem to us that, if the right to the trial by jury which is mandated by the Constitution has been infringed by the provisions of the Juries Act (Vic.), that infringement cannot be waived by an accused person ^[8] . We should note that Mr Robinson addressed no argument to the Court on this aspect of his Honour's ruling, but specifically reserved his right to argue the "waiver point" in the event that the matter proceeds to the High Court. He, no doubt, did so having regard to the doubts which have been judicially expressed about the question of waiver ^[9] .

[22] It is against his Honour's ruling that the provisions of s14A and s48A of the Juries Act (Vic) are not incompatible with the "trial ... by jury" mandated by s80 of the Constitution, that Mr Wendler advanced argument to this Court pursuant to these grounds of appeal. His arguments were, of course, advanced on the basis of the events which had in fact occurred at the trial following his Honour's ruling. After a trial which had lasted nearly four months, in the course of which the 15 jurors empanelled had remained (no juror having died or been discharged for cause), a ballot was conducted in accordance with the provisions of s48A at the time when the jury was required to retire to consider its verdict. As it happened the "card" of the foreperson was the first one drawn; and that card was "kept apart" in conformity with subs(4) of s48A and another card drawn. Mr Wendler submitted that the process, required by the Juries Act, of reducing the number of empanelled jurors to 12 by ballot, but by "protecting" the foreperson, infringed some of the essential and inviolable features of the "trial by jury" which s80 of the Constitution requires, namely unanimity of verdict ^[10] ; randomness of jury selection ^[11] ; representativeness of the jury ^[12] ; and "equality of voting power on the jury". Specifically it was submitted on behalf of the applicant that:

•: The legislative "protection" in favour of the foreperson offended the essential feature of randomness of the jury required by s80. The imperative of randomness, it was contended, is necessarily infringed if those who are ultimately to determine the fate of the accused comprise one elected juror (the foreperson) and 11 randomly chosen jurors. In this sense, it was argued that the immunity of the foreperson from the balloting process prevented the final jury from being randomly chosen;
•: The process of "balloting down" a jury of 15 to a jury of 12 offended the constitutional imperative that the jury's verdict be unanimous; and also offended the requirement that the jury be representative;
•: The implication in the legislation that the foreperson has a "special and superior status" to other members of the jury violates the constitutional imperative of equality of voting power inherent in the "trial ... by jury" for which s80 of the Constitution provides;
•: The balloting process itself offends the imperative that "trial by jury" shall afford all empanelled jurors the "constitutional right" to participate in returning the verdict unless discharged for cause in accordance with s44 of the Juries Act;
•: To the extent that the Juries Act legislatively "immunises" the foreperson against "balloting off" it breaches the constitutional guarantee, mandated by Ch III of the Constitution, of a fair trial.

[23] Notwithstanding the attractiveness of some of these arguments, we are not persuaded that they are correct. In recent years the High Court in cases such as Brown (supra), Katsuno (supra), Cheatle (supra) and Brownlee has considered what constitutes the essential characteristics of "trial ... by jury" within the meaning of s80 of the Constitution and has developed a body of jurisprudence as to what those characteristics are. In its search for those characteristics, the Court has emphasized that regard must be had to "history, principle and authority", including the practice which governed jury trials at the time of federation, but has noted that the Constitution was an instrument of government "which would need to respond to changing circumstances and conditions over time" ^[13] . Nevertheless, the Court has identified certain characteristics of trial by jury as "essential" for the purposes of s80 of the Constitution. They include:

(a): that the verdict of the jury must be unanimous ^[14] ; and
(b): that the jury be a body of persons representative of the wider community, involving the requirement that the panel of jurors be randomly or impartially selected, rather than chosen by the prosecution or the State ^[15] .

One cannot, however, lose sight of the fact that the search for the essential aspects of "trial by jury" as prescribed by s80 proceeds in the knowledge that the incidents of procedure attaching to jury trials have never been immutable, but are constantly changing to meet with contemporary standards ^[16] . Thus it has been held not to be essential that the unanimous verdict must be given by 12 jurors rather than 10; or that the jury must not be allowed to separate during their deliberations ^[17] .

[24] As we have noted, it was a central thrust of the submissions made to this Court that the essential characteristics to which we have referred are infringed by the provisions of s48A of the Juries Act (Vic), which permit a reduction in the number of empanelled jurors from 15 to 12, by ballot, prior to deliberation, and also "immunise" the foreperson against removal by the ballot. These procedures, it is submitted, offend the essential characteristics of "randomness" and "representativeness" of the jury because of the immunity which the Act gives to the foreperson. It is contended that such procedure produces a jury which is no longer "randomly selected" because one of its number cannot be "randomly balloted off". Further, it is submitted that to provide to the foreperson of the jury the immunity prescribed is to produce a jury whose members have "unequal status" - a status which violates the imperative of "equality of voting power".

[25] We are not persuaded that the reduction of the empanelled jurors from 15 to 12 by a balloting process, or the immunity granted to the foreperson, violates the characteristics of random selection or representativeness of the jury. The panel of jurors from which the ultimate 15 were empanelled was randomly chosen from the wider community in accordance with the provisions of s8, s10, s20, s32 and s33 of the Juries Act 1967 (Vic). Although the Act contemplates that a person's guilt of an indictable offence will be decided by a jury of no more than 12, s14A empowers the judge to empanel up to three "additional jurors" as a legislative protection against "aborted trials" and in an endeavour to ensure that the right of the accused to have his guilt determined by 12 persons is preserved. For all purposes, the 15 jurors ultimately empanelled and sworn were randomly selected from the community and were representative of it. In our view the process by ballot which reduced their number from 15 to 12 (itself a random process) did not diminish the randomness, nor the representativeness of the remaining 12 jurors who deliberated. The randomness of the jury which s80 of the Constitution contemplates is randomness at the point of creation of the panel of jurors from whom the ultimate jury is chosen. It is that randomness in selection of the panel which, in our opinion, invests the ultimate jury with the characteristics which s80 of the Constitution requires. Indeed the actual process, which occurs thereafter, through which the ultimate jury is selected (in accordance with the rights of challenge accorded to defence and prosecution) is a process which is calculated to impinge upon the randomness, representativeness and impartiality of the wider panel, as this Court pointed out in R v Su & Ors ^[18] .

[26] Nor, in our view, does the immunity given to the foreperson from the balloting process diminish the randomness or the representative character of the jury who remain to deliberate. That jury (including its foreperson) is still the product of a random selection process from the wider community and the exclusion of the foreperson from the ballot does not - we think - compromise the random and representative nature of the twelve persons who remain to deliberate. In other words, the immunity given to the foreperson cannot deny the fact that he or she, along with the other 11 jurors, was randomly selected and representative of the wider community. There is no doubt good reason for excluding the foreperson from the ballot. The foreperson has been selected by the other jurors at the outset of the trial to perform a representative role on their behalf; a function which the legislature regarded as sufficiently significant to warrant protection at the end of trials which were no doubt contemplated to be lengthy ones. But the fact that the foreperson is protected from the ballot does not, in our view, lead to the conclusion that the jury is no longer representative of the wider community or has lost the randomness which, to that point, it clearly had. Furthermore, it seems to us to be an over-statement to suggest that the fact that the foreperson is given immunity from the ballot leads to the result that the foreperson is invested with a special status which violates the imperative of equality of voting power. The jury remains a "collective" whose verdict must be a unanimous one; a fact from which it can be implied that the role of the foreperson in the ultimate verdict is no greater and no less than that of the other eleven jurors.

[27] It was submitted that the process of reducing the number of jurors from 15 to 12 by the ballot offended the "constitutional right" of each of the jurors to participate in the verdict. In the course of argument, Mr Wendler moderated the so-called "right" to an "entitlement". However, in our view, the argument cannot succeed, whichever word is adopted. Jurors who are selected and sworn to try a case, notwithstanding that the accused has been placed in their charge, do not acquire a "right" or "entitlement" to ultimately deliberate. If it were otherwise, the provisions of the Juries Act which empower the judge to discharge jurors for cause would themselves be a violation of s80 of the Constitution. Although Mr Wendler recognized that a juror who was discharged for good cause pursuant to s44 of the Juries Act could not insist on his or her "right to deliberate", he was, as it seemed to us, unable to assign any valid reason for differentiating between such a juror and one who was discharged as a consequence of the operation of the ballot.

[28] As we have previously noted, the primary purpose of s48A of the Juries Act is to ensure that juries which are empanelled to hear long trials can complete their task without their numbers falling to such a low level that the trial has to be aborted. In this sense the provision is calculated to ensure that the jury which deliberates upon and delivers the verdict maintains its randomness and representative nature. Looked at in that light, it is difficult to categorize the provision as offending the concept of "trial by jury" mandated by s80 of the Constitution; rather it seems to us that it takes on the character of a procedural provision introduced to accommodate the modern trend of lengthy trials, many of which involve indictable offences against laws of the Commonwealth, and to ensure that those trials can be completed to verdict by the very type of jury which the Constitution requires ^[19] . The 15 jurors who are empanelled pursuant to s48A are not empanelled as "the jury" to return the verdict; rather they form a panel of 15 jurors from whom a "conventional" jury of 12 will be chosen, at random, to return the verdict. Accordingly, the process of ballot does not offend the "principle of unanimity" because it is the verdict of the jury of at least 12 persons to whom the Act assigns the task of deliberating and delivering the verdict which, in conformity with s80, must and will be unanimous.

[29] For the reasons which we have already given we do not accept the applicant's contention that he has not been afforded a fair trial mandated by Chapter III of the Constitution simply because s48A(4) of the Juries Act protects the foreperson from the ballot. This ground was based on the same arguments as were put in support of ground 4, namely that the provision was giving an "elevated status" to the foreperson which, in some way, violated the constitutional imperative of equality of voting powers. As we have already said, we do not accept that such a consequence flows from the preservation of the foreperson's position on the jury. It is simply a protection which is designed to perform a utilitarian purpose; not to give special status in "voting rights" to the foreperson. Indeed as the judge told the empanelled jurors when asking them to select their foreperson, and explaining that person's role:

"But the fact that you choose someone to fill that role ... does not place that person in any different position to any of the rest of you, because you are all judges of the facts in this case and are all entitled to have your views considered and provided with the same weight amongst all of you when you discuss the case." (TX 1691-2).

[30] In conclusion on this topic, we should observe that Mr Wendler did not contend that the provision by legislation to empanel additional jurors was, per se, unconstitutional and contrary to s80. Rather it was the removal of jurors by ballot before retirement and the "protection" afforded to the foreperson which offended what he called "the constitutional imperatives". Indeed, it had been his submission to the trial judge that he should permit all the sworn jurors to retire to deliberate; notwithstanding that such a course would have, in the event of conviction, almost inevitably have been attended by an appeal founded upon a contention that the trial had miscarried for non-compliance with the statutory process. State legislative provisions which seek to protect lengthy trials from being aborted for want of jurors, whether by way of "additional jurors" or "reserve jurors", will - as we have said - almost as a matter of course attract criticism on the basis that they offend the constitutional guarantee of "trial by jury" given by s80. The concept of swearing in "reserve jurors", who will take their place on the jury - whether by ballot or in order of being sworn - in the event that jurors are discharged, has already been challenged as offending s80 in Ah Poh Wai v R ^[20] on the basis that it creates a statutory division between "reserve jurors" and those sworn as "deliberative jurors" who, so it is said, are compromised by discussions with those outside their number. In this case the contention is, in a sense, the converse; namely that the removal of "additional jurors", who have been sworn to duty on the panel, by a ballot which exempts one of their number, compromises other constitutional imperatives of randomness, representativeness, unanimity and equality of voting power. In the long run however, we take the view - and for the reasons we have given - that the State and Territory legislative provisions which cater for "reserve" or "additional" jurors operate in aid of a verdict which is given by a randomly selected and representative jury; and that this remains so notwithstanding that the foreperson is protected from the ballot. Accordingly, in our view grounds 1-4 (inclusive) and ground 16 should be rejected.

Ground 14

[31] This ground, being related to the validity of the trial, was argued next. Immediately after the jury of 15 persons was empanelled on 14 April 2000, the twenty eighth day of hearing, Mr Wendler queried whether an order such as contemplated by s14A of the Juries Act 1967 had been made. (As we have noted all counsel had since the commencement of the trial on 28 February 2000 agreed more than once that, because of the expected length of the trial and in light of the fact that this was the third trial, a jury of 15 persons should be empanelled.) His Honour said that he did not think that he had made a formal order ^[21] and then added:

"If it requires me to make a formal order I will, and make it nunc pro tunc, so that it's quite clear that this is the position, and so far as reasons are concerned, if you wish me to state them, illustrate them briefly."

Counsel stated that he did not require reasons, but that he was concerned that the order should be made before the jury was empanelled and that, in effect, it had been made retrospectively. The issue raised by counsel for the applicant was argued on the next sitting day. Counsel contended that, since a formal order had not been made before empanelment, the jury of 15 persons had not been validly empanelled and that his client was not receiving a trial according to law. In his submission all that could be done was to discharge the jury and empanel a fresh one. Having heard the prosecutor and, in reply, counsel for the applicant, the trial judge proceeded immediately to give his ruling. He held that it was sufficient if the order contemplated by s14A could be inferred or was implicit, although it was preferable that an express order be made. His Honour accepted that he had not formally ordered that a jury of 15 be empanelled but, referring to the course of proceedings to date and in particular to his statement to the jury panel prior to empanelment that "the trial in which 15 of you will be empanelled as jurors" concerned the charge which he then read from the indictment, he concluded that there was no doubt that the process contemplated by s14A was in fact adopted. His Honour was not persuaded that there had been a failure to comply with s14(2) or s14A and declined to discharge the jury.

[32] Provisions for the empanelment of up to three additional jurors in criminal inquests were introduced into the Juries Act 1967 by the Juries (Amendment) Act 1990 with effect from 1 January 1991. As previously stated, by s14(2) of the Juries Act 1967 as amended by the Act of 1990 a criminal inquest in the Supreme Court or the County Court is to be tried by a jury of 12 or, "where the court makes an order in accordance with s14A", by a jury of not more than 15. S14A as in force after amendment by the Courts (General Amendment) Act 1995, has already been set out.

[33] Before us Mr Wendler took the same general position as he had taken before the trial judge. He submitted that s14A mandated a form of procedure that required a formal order by the judge before additional jurors were lawfully empanelled. In his written outline of argument he contended that the judge here had been required to order that there be additional jurors and to state the reason for those additional jurors, but in oral argument he placed, not unnaturally, no reliance on the absence of a statement of the reason. What he submitted was that the judge should have said words to the effect, "I order pursuant to s14A of the Juries Act 1967 that 3 additional jurors be impanelled". Such an order, he said, by identifying the section, satisfied the words "where the court makes an order in accordance with s14A" in s14(2), on which he relied along with the use of the word "order" in s14A itself. In answer to a question from the Bench counsel stated that his submission did not go to the extent of saying that a formal order had to be authenticated or otherwise perfected. He then submitted that once objection was made the trial judge was obliged to comply with the Juries Act and, since it was too late to do so at the time the objection was taken before the trial judge, the only course open to the judge was to discharge the jury. The failure of the trial judge to make a formal order of the kind propounded had led to a fundamental failure of procedure going to the root of the applicant's trial: the jury that was empanelled was a jury constituted otherwise than in accordance with s14A. Counsel relied on Wu ^[22] , Brownlee ^[23] and Radju ^[24] as showing the importance of making formal orders in the context of a jury trial, especially where the relevant legislation demands that such orders be made.

[34] For the respondent a number of submissions were made in the alternative. Though variously expressed, essentially they were that no formal order was required; that in any event an order had impliedly been made before empanelment; that an order could be made retrospectively after empanelment and, if that was necessary, it had been done here; that there was no high degree of need to discharge the jury since any failure to make a formal order was a mere irregularity, corrected in any event before the applicant was placed in the jury's charge, and a fundamental failure of procedure vitiating the trial did not result. In support of the submission that it was open to the judge to make a retrospective order after empanelment the majority decision in Emanuele v Australian Securities Commission ^[25] was cited.

[35] Numerous provisions in the Crimes Act 1958 ^[26] , the Evidence Act 1958 and the Juries Act 1967 ^[27] authorise the making of orders or the giving of directions or the granting of leave for the taking of a certain step during the course of a criminal jury trial. It may be that as a general rule, though not a universal one, the word "direct" is used where the curial command relates to a less significant matter. It is not the practice in Victoria for orders made and directions given before verdict in a criminal jury trial to be authenticated or otherwise formally drawn up and signed or sealed. ^[28] Suppression orders made under s18 of the Supreme Court Act 1986 or s80 of the County Court Act 1958 constitute an exception, necessitated by the terms of those sections. The question raised by the present ground is, as already indicated, limited to oral pronouncement of an order.

[36] We doubt whether his Honour's statement to the jury panel after the applicant and his co-accused had been arraigned before them on 13 April 2000 that "The trial in which 15 of you will be empanelled as jurors concerns the following criminal charge" can be considered as an express order under s14A, as Sully J (with whom the other members of the New South Wales Court of Criminal Appeal agreed) was inclined to treat the somewhat more direct statement that "The trial will continue with a jury of eleven members only" in R v Privett ^[29] . We have no doubt, however, from what occurred in the trial up to the commencement of the empanelment of 15 jurors, including his Honour's statement to which we have referred, that his Honour impliedly or tacitly ordered pursuant to s14A the empanelment of three additional jurors before the jury was empanelled for reasons that appeared to him to be good and sufficient, being those that had earlier been discussed with and by counsel as already mentioned. His Honour was invited to exercise the power conferred by s14A. He must have done so, for he made clear his view that such a course was desirable and 15 jurors were empanelled by his Associate while he was presiding. The making of an order in accordance with s14A was a condition precedent to the empanelling of 15 jurors. The presumption of regularity applies.

[37] As his Honour himself recognised, it would have been better had he explicitly pronounced an order pursuant to s14A for the empanelment of three additional jurors: Wu ^[30] , which concerned the power or discretion of a judge in New South Wales to discharge a juror and the further power of discretion to proceed with a jury of less than 12; and Brownlee ^[31] , where, amongst other things, the power to permit, by order, a jury to separate fell for consideration. But the High Court has recognised in the first of those two cases ^[32] that orders of the kind there under consideration might be made inferentially or impliedly. The obiter statements in Wu, for such they were, as to the desirability of explicit orders and the making of orders impliedly or inferentially have been applied by the New South Wales Court of Criminal Appeal in R v Radju ^[33] ; R v Phan ^[34] and R v Privett. ^[35]

[38] This ground, therefore, fails.

Ground 6

[39] The warrant impugned by this ground was one authorising the use of a listening device in relation to a particular person, the present applicant. Its issue was said to be authorised by s219B(5) of the Customs Act 1901 (Cth). Subs(1) of that section makes it unlawful for an official of a Commonwealth law enforcement agency to use, for the purposes of narcotics inquiries being made by the agency, a listening device for the purpose of listening to or recording words while being spoken save in three circumstances. One of those is that the official does so in accordance with a warrant issued under the Division containing s219B. By subs(5), where upon application made for the issue of a warrant under the section authorizing the use of a listening device in relation to a particular person, a judge is satisfied by information on oath, amongst other things, that the person has committed, or is suspected on reasonable grounds of having committed or of being likely to commit, a narcotics offence (which includes the offence on which the applicant was presented), the judge may, by warrant under his hand in accordance with the prescribed form, authorize officials of the Australian Federal Police or National Crime Authority, subject to any conditions or restrictions that he sees fit to specify in the warrant, to use a listening device for the purpose of listening to or recording words spoken by, to or in the presence of that person. By virtue of subs(6) a warrant under subs(5) may authorise the use of a listening device for the purpose of listening to or recording words spoken by, to or in the presence of a person anywhere in Australia. In argument subs(6) was treated, correctly in our opinion, as containing a negative implication ^[36] that a warrant might not authorize the recording of words spoken outside Australia.

[40] The warrant in question was signed by a judge of the Federal Court on 30 July 1996. It is headed with a reference to the Customs Act 1901 and is intituled "Warrant Under Subs219B(5) in Relation to a Particular Person". Its first recital refers to the applicant, described as of 450 Victoria Street, North Melbourne, as the particular person and the second recital records that the judge is satisfied of the matters referred to in subs(5), including that the applicant is suspected on reasonable grounds of having committed a narcotics offence. The first of the operative paragraphs of the warrant reads:

"I HEREBY AUTHORISE you to use a listening device for the purpose of listening to or recording words spoken by to or in the presence of PHILIP NG, also known as MING NG CHEE, anywhere in"

The words "anywhere in" occur at the right hand end of a line of type. On the next line is typed the following-

"Australia subject to the following conditions or restrictions:".

All ^[37] those words have been crossed out by two horizontal lines and the judge's initials appear to the immediate left of them.

[41] The warrant issued appears to follow the form prescribed in Schedule 1 to the Customs (Narcotics Inquiries) Regulations as then in force. In the prescribed form the words "anywhere in Australia" come at the end of a line, whilst the expression "subject to the following conditions or restrictions:" begins a new line. It is interesting to note that in the prescribed form, though not in the form presented to the judge, each of those two expressions is preceded by an asterisk referring to a footnote reading, "Omit if inapplicable".

[42] Relying on Ousley v The Queen ^[38] counsel for the applicant (and counsel for his co-accused) before the trial judge challenged the validity of the warrant during argument before the jury was empanelled. It was submitted that the warrant was null and void and of no legal effect because it disclosed jurisdictional error on its face in that it authorised the use of a listening device for the purpose of listening to or recording words spoken anywhere at all. His Honour held that the task of determining the validity of the warrant was to be confined to scrutinising the words used in it measured against the provisions of s219B(5) and s219B(6). Doing that, he held the warrant to be beyond power and a nullity. However, he went on to hold that s46(1)(b) of the Acts Interpretation Act 1901 (Cth.) applied to the warrant with the result that the warrant was a valid instrument to the extent to which it was not in excess of power. It should accordingly be read and construed as authorising the use of a listening device anywhere in Australia, and to that extent was valid.

[43] S46 of the Acts Interpretation Act 1901 (Cth.) provides, so far as material, as follows:

"(1) Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then:

(a)
unless the contrary intention appears, expressions used in any instrument so made, granted or issued shall have the same meanings as in the Act conferring the power, and this Act shall apply to any instrument so made, granted or issued as if it were an Act and as if each such rule, regulation or by-law were a section of an Act; and

(b)
any instrument so made, granted or issued shall be read and construed subject to the Act under which it was made, granted or issued, and so as not to exceed the power of that authority, to the intent that where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power."

[44] It was submitted for the applicant on this application that his Honour had correctly held the warrant to be beyond the powers conferred by s219B(5), but had erred in holding s46(1)(b) applicable as the contrary intention clearly appeared on the face of the warrant, for the judge had deliberately struck out words of limitation and thereby revealed an intention to grant a warrant without limit to its geographical ambit and s46(1)(b), being, it was said, relevant to construction, not to limitation, could not assist. In short one would be reading back into the warrant the words of limitation which had been deliberately struck out. As a result of an error of law made by the trial judge concerning the warrant the jury had been permitted to receive a large body of evidence that was inadmissible, it having been illegally obtained, and thereby a miscarriage of justice had occurred. It was not, however, contended that pursuant to the warrant evidence was gathered of words spoken outside Australia. For the respondent, on the other hand, it was submitted, first, that the warrant on its proper construction did not operate extraterritorially: in crossing out the first word, "Australia", of the line referring to conditions and restrictions the judge had made an obvious slip of the pen rather than intentionally attempting to give the warrant operation beyond the terms of the enabling section. It was clear that in making the deletion the judge was excluding the imposition of any conditions or restrictions, and was doing nothing else. In the alternative it was submitted that any purported extraterritoriality was capable of being severed and the warrant remained valid for operation within Australia by virtue of either s46(1)(b) or common law principles. In the further alternative it was submitted that, if severance was not possible, the proviso ought to be applied as the admission of the evidence obtained had resulted in no substantial miscarriage in that this Court ought to hold in the exercise of the Bunning v Cross ^[39] discretion that the evidence could only have been admitted and further or alternatively in light of the evidence otherwise admissible the applicant had not lost the chance of an acquittal that was fairly open to him.

[45] It cannot be doubted, in our view, that the crossing out of the word "Australia" was an unintended slip of the pen and that the judge granting the warrant was not seeking to secure for it an extraterritorial operation, which was not required by the Australian Federal Police in respect of a person described in the warrant as of North Melbourne and which, it would have been immediately obvious to the judge concerned, would have been invalid. Further, as a result of the deletions the relevant part of the warrant ended, not "anywhere", but "anywhere in", an expression needing a word or phrase of place to complete it. Again, the title of the warrant showed that it was granted under s219B(5), which is to be read with subs(6) set out earlier. Finally, on the assumption that the warrant is an "instrument" (a question discussed below and answered affirmatively) the second part of para(a) of s46(1) makes the Acts Interpretation Act apply to the warrant as if it were an Act, and by s21(1)(b) of the Acts Interpretation Act it is provided that in any Act, unless the contrary intention appears, references to localities (amongst other things) shall be construed as references to such localities in and of the Commonwealth, the latter word clearly being used in a geographical sense. It might, however, be countered that the contrary intention appears from the deletion that was made. Since a warrant is a unilateral document and since the question here is whether the contrary intention appears, it may be that cases concerned with whether, in the construction of contracts , regard can be had to words or clauses deleted from printed or standard forms of contract are not of assistance. ^[40] Although the Federal Court judge crossed out the word "Australia", that, in our view, is insufficient to make apparent the contrary intention referred to in s21(1) in circumstances where the crossing out of that word was clearly a slip and where the incomplete expression "anywhere in" was left standing. Even without s21(1)(b), the same conclusion would probably be reached on ordinary principles of construction of subordinate instruments especially by reading down to avoid an extra-territorial operation: Montgomery v Gerber ^[41] ; Taylor v Harris ^[42] ; and Pearce and Argument, Delegated Legislation in Australia ^[43] . For these reasons, and particularly that based on s21(1)(b), we conclude that the warrant can properly be construed as referring merely to anywhere in Australia notwithstanding the deletion of the word "Australia".

[46] Since the warrant was a document that conferred extraordinary powers and immunities, in case our conclusion is incorrect we move to consider the other contentions of the respondent in support of validity. In doing so we proceed on the footing that the warrant is to be construed as being in excess of the power conferred by s219B(5) and s219B(6) upon the judge granting it. The first question which then arises is whether, nevertheless, by reason of s46(1)(b) abovementioned, the warrant was a valid instrument to the extent to which it was not in excess of that power. Only one argument against the application of that provision was advanced on behalf of the applicant. This was that there was a contrary intention. In our view, there is nothing in this point. The concept of the contrary intention is not expressly mentioned in para(b) of s46(1), but only in para(a), which is not presently material. But, even if it be allowed that para(b) may be subject to a contrary intention ^[44] , the contrary intention requisite is one that excludes the operation of the validating principle contained in para(b), and the form of the warrant itself does not manifest such a contrary intention, but, at most, on the hypothesis now made, only an intention that the operation of the warrant should not be limited to Australia. Such an intention is insufficient, as a moment's thought will indicate: instruments which provisions such as s46(1)(b) partially save frequently evidence a clear intention to go beyond the power of their maker. In other words, a contrary intention of that kind is necessarily overridden by s46(1)(b). We therefore do not accept the applicant's argument against the application of s46(1)(b).

[47] There are, however, in our view, two other matters requiring consideration before it can be held that s46(1)(b) applies. The first is whether a judge acting under s219B is an "authority" within the meaning of s46(1). In agreement with the trial judge, we answer that question affirmatively. A judge in granting or issuing a warrant does not act judicially or legislatively ^[45] , but the judge is a person in authority under s219B. The conception of judges as an authority is not novel. The judges of a court, acting as a collegiate body in making rules of court, were an "authority", within s46(1) according to the obiter and not concluded view of all members of the High Court in Harrington v Lowe ^[46] . Indeed, s28 of the Acts Interpretation Act, on which their Honours placed some reliance, refers to the entity having the power to make rules of court as "the authority".

[48] The second further matter is whether a warrant granted or issued under s219B is an "instrument" within the meaning of s46(1). Unfortunately, we did not have the benefit of submissions on this far from easy point. According to Stroud's Judicial Dictionary ^[47] an instrument is a writing, and generally imports a document of a formal legal kind. Black's Law Dictionary ^[48] relevantly defines it as "A written legal document that defines rights, duties, entitlements or liabilities, such as a contract, will, promissory note, or share certificate." Most helpful perhaps is the following definition in The Oxford English Dictionary ^[49] :

"5.a. Law . A formal legal document whereby a right is created or confirmed, or a fact recorded; a formal writing of any kind, as an agreement, deed, charter, or record, drawn up and executed in technical form, so as to be of legal validity."

Amongst the examples of the word used in that sense is an extract from Trial of the Regicides (1660), where it is used of the warrant for the execution of Charles I. In Azevedo v Secretary, Department of Primary Industries and Energy ^[50] French J, in holding that a plan of management under the Commonwealth fishing legislation was an instrument within s46, referred to the definition in The Shorter Oxford English Dictionary, which is the same as that set out above from The Oxford English Dictionary. Earlier, in Chittick v Ackland ^[51] Lockhart and Morling JJ had in another context stated that the word "instrument" was a word of wide import and that its meaning was to be ascertained having regard to its context, whilst Jenkinson J ^[52] had considered that the word included a document the making or issuing of which operated as an act in the law.

[49] It might seem, therefore, that a listening device warrant is an "instrument" within the meaning of s46(1). However, in Australian Capital Equity Pty Ltd v Beale ^[53] Lee J held that the expression "any instrument (including rules, regulations or by-laws)" in s33(3) of the Acts Interpretation Act and, at least inferentially, in s46 of that Act was limited to legislative instruments, if not indeed to instruments containing subordinate legislation of the standing of rules, regulations or by-laws. His Honour in fact took the view that the aids to interpretation found in that Act are limited in their application to legislative instruments, that being, in his view, the sole and obvious purpose of the Act. It is clear that a listening device warrant is not a legislative instrument but an executive or administrative one and that the power to grant or issue such a warrant is an executive or administrative power. ^[54] The view of Lee J in Beale has been followed by Branson J in Dutton v Republic of South Africa ^[55] , by Weinberg J in Minister for Immigration and Multicultural Affairs v Sharma ^[56] , by Moore J in Schanka v The Employment National (Administration) Pty Ltd ^[57] and, most notably, by this Court in Director of Public Prosecutions' Reference No 2 of 1996 ^[58] . There Brooking JA (with whom the other members of the Court concurred) held that opinion notices given by the Minister under s13 of the National Crime Authority Act 1984 (Cth) were not "instruments" within the meaning of s46(1) of the Acts Interpretation Act, saying:

"The latter Act is, as its long title shows, an Act for the interpretation of Acts of Parliament and for shortening their language. The expression used in s46 - 'any instrument (including rules, regulations or by-laws)' - should be regarded as confined to subordinate legislation. This was the view of Fullagar J in R v Hamilton Knight; Ex parte Commonwealth Steamship Owners' Association ^[59] and of Lee J in Australian Capital Equity Pty Ltd v Beale... It is also the view taken in D C Pearce & R S Geddes, Statutory Interpretation in Australia, 4th ed, (1996), para3.5, para6.2 and para6.23."

His Honour did record that the respondents had not submitted that a notice under s13 was an "instrument" within the meaning of s46(1). Of the four cases above that have followed Beale the first three concerned s33(3) of the Acts Interpretation Act and only the last directly concerned s46(1), which is in a different Part of the Act. None directly concerned a warrant. But those differences are not proper grounds for distinguishing the present case since the underlying thesis of Beale and Director of Public Prosecutions' Reference No 2 of 1996 would catch the present case. As Brooking JA's judgment shows, Lee J's opinion in relation to s46 accords with that expressed by Fullagar J in Hamilton Knight ^[60] .

[50] On the other hand, Kitto J in The Queen v Commonwealth Industrial Court Judges; ex parte Cocks ^[61] appears to have taken the contrary view. There are indeed numerous cases where the word "instrument" in s33(3) or s46(1) has been held, or treated as, not limited to legislative instruments. Thus, in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) ^[62] Brennan J, sitting as President of the Administrative Appeals Tribunal, and thus not judicially, held that the words already quoted from s33(3) brought a power to grant or make an executive or administrative instrument within the natural ambit of s33(3). (His Honour, however, held that the power there in question was not one "to grant or issue an instrument" because it did not need to be exercised in writing. In dismissing an appeal the Full Court of the Federal Court was essentially of the latter view and did not deal with whether administrative or executive powers were within the ambit of s33(3): Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd ^[63] ). Similarly, although the decision of Brennan J was not cited, the Full Court of the Federal Court (which included Bowen CJ) in Barton v Croner Trading Pty Ltd ^[64] , having pointed out that the word "instrument" was of wide import, held that the written authorisation of the Attorney-General for consent to prosecution to be given by another Minister was an instrument to which s46(b) (as it then stood) applied, so that, if it were otherwise beyond power, s46(b) would require it to be read down and be valid to that extent. In Edenmead Pty Ltd v The Commonwealth ^[65] Spender J held that a power to prohibit a type of fishing in a certain area by notice was a power to make, grant or issue an instrument within s33(3) of the Acts Interpretation Act. That decision is consistent with Re Brian Lawlor ^[66] , though his Honour had need only to discuss the judgments on the appeal in that case. In Heslehurst v Government of New Zealand ^[67] Emmett J, after a careful review of the authorities relating to warrants, expressed a firm preference for the view of Brennan J over that of Lee J. There are several other Federal Court cases where the issue was adverted to but no actual decision on the point was made. ^[68]

[51] Very significantly, in a number of cases concerning powers to grant or issue administrative warrants the view of Brennan J has been adopted and s46(1)(b) or the differently worded, but substantially similar, s32 of the New South Wales Interpretation Act 1987 has been applied to read down and validate warrants or has been treated as capable of so applying. In particular, in Commissioner of Australian Federal Police v Propend Finance Pty Ltd ^[69] Gummow J stated:

"The power conferred upon the authorities designated in s10 [of the Crimes Act 1914 (Cth.)] to grant search warrants is to be so construed, in accordance with s46(1)(b) of the Acts Interpretation Act 1901 (Cth.), that any warrant granted thereunder is to be read so as not to exceed that power."

Again, in Peters v Attorney-General (NSW) ^[70] , which concerned warrants issued under the New South Wales listening devices legislation, McHugh JA (as he then was), with whom Kirby P agreed on this aspect, stated:

"A warrant is an instrument for the purposes of the Interpretation Act 1987, s32: cf Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales). Accordingly, the warrants are to be read and construed to the extent that they can be read as valid instruments."

Mahoney JA did not find it necessary finally to determine whether warrants of the kind in question were instruments for the purposes of s32 because by virtue of either general principles of construction or of s32 they were not to be construed as authorising action contrary to Commonwealth legislation. In Malubel Pty Ltd v Elder ^[71] Nicholson J, with whom Burchett J agreed substantially and Madgwick J relevantly agreed, after referring to McHugh JA's statement in Peters, stated:

"S46 of the Acts Interpretation Act 1901 (Cth.) is to the same effect as s32 of the Interpretation Act [NSW] although it is worded slightly differently. The effect of s46 is to provide that warrants are to be read and construed, to the extent they can be, as valid instruments. This supports the respondents' argument that severance is possible in this case if necessary."

In Ibbotson v Chaney ^[72] White J of the Supreme Court of Western Australia cited Peters with approval, as did Holmes J in Dobbs v Ward ^[73] , though her Honour held that severance was not possible because the warrant would then have operated quite differently. Much earlier, in Coward v Allen ^[74] - the only case cited to us on s46(1)(b) - Northrop J had held that some invalid words in a warrant issued under s10 of the Crimes Act 1914 could be severed by reference to s46(b), as the provision then stood. It might be said that, contrary to some of the statements to which we have referred, cases concerned with s32 of the New South Wales Interpretation Act are of no assistance because, albeit not mentioned in the cases, s3(1) of that Act contains a definition of the word "instrument" when used in that Act ^[75] . But, even if decisions concerning s32 are put on one side, there is still left the statement of Gummow J in Propend Finance, as well as the decisions of two Full Courts of the Federal Court to the effect that s46(1)(b), as the provision now stands, applies to instruments granted or issued under an administrative or executive power and in particular, according to one of those cases, to a warrant.

[52] The legislative history tends to support the view of Brennan J. His Honour in Re Brian Lawlor and Emmett J in Heslehurst referred to one aspect, namely the insertion in 1941 in s33(3) after the word "make" of the words "grant or issue", which are, or at the least the first of which is, inapposite to a power to create a legislative instrument. In addition, the introductory portion of s46(1) and the first part of para(a) of that sub-section derive mediately from s31 of the Imperial Interpretation Act 1889, which spoke of "power to make, grant, or issue any instrument, that is to say, any order in council, order, warrant ^[76] , scheme, letters patent, rules, regulations or by-laws". From the time when an equivalent to s31 of the Imperial Act was first enacted in the Acts Interpretation Act 1901 as s32, instead of the words quoted from the Imperial s31 the expression "any instrument (including rules, regulations, or by-laws)" was used. It is clear, however, that that expression was treated as equivalent to or as including the words in the Imperial s31. Reference to the Second Reading Speech of the Attorney-General (Mr Deakin) on the Bill for the Acts Interpretation Act 1901 ^[77] and the debate thereon shows that the presently relevant provisions were modelled closely on the Imperial Act of 1889 ^[78] . Mr Piesse twice raised ^[79] the difference between the list of instruments in the Imperial Act and the shorter expression quoted above and found in what were then cl34 and cl35. During the committee stage the Attorney-General stated ^[80] that he intended to move that the words "including any rules, regulations or by-laws" be inserted after the word "instrument" wherever occurring, "so that there may be no doubt that, wherever the word instrument occurs in our legislation, its ordinary meaning is to be specifically extended to cover rules, regulations and by-laws". This shows that the word "instruments" was not intended to be limited to legislative instruments and is certainly contrary to the limited reading raised as a possibility by Lee J. The important point is that several of the documents specifically mentioned in the Imperial s31 were such that the power to make, grant or issue them was an executive or administrative power. Amongst such documents was a "warrant". A warrant is a document issued under the hand of a designated person authorising the person to whom it is addressed to do something which would otherwise be unlawful. ^[81] There are many kinds of warrants, such as warrants for the payment of money and warrants for the moving of goods subject to Customs, but the warrant here in question is undoubtedly properly so called.

[53] With regard to the legislative context in which s46(1) finds itself, there is a matter of considerable, even decisive, significance which does not appear to have been adverted to in any of the cases. This is the terms of s4 as inserted by the Acts Interpretation Act 1976 (Cth.) in place of the original s4 and subsequently amended. Dealing with the exercise of certain powers between the passing and commencing of an Act it speaks in subs(1), and has so spoken since its insertion, of power "to make an instrument of a legislative or administrative character (including rules, regulations or by-laws)". The same expression appears in para(a) of the later-inserted subs(1A). The word "instrument" seems to occur only in s4, s33, s46 and s46A and it is clear from the terms of s4(1) and s4(1A) that where it appears in s46 it is apt to comprehend an instrument of an administrative character. That is put beyond doubt by the reference, slightly out of date, to s46 in s4(6).

[54] Moreover, there is an alternative to the view expressed in Beale as to the significance of the long Title to the Acts Interpretation Act. This is that the existence of a standing section in the terms of s46, even if it applies to administrative powers, avoids the necessity of including in the several Acts conferring such powers a provision to the same effect and thereby carries out the purpose stated in the second half of the long Title, namely that of "Shortening their [Acts'] Language". Similarly, an alternative view is open as to the nexus between an "instrument" and an Act of Parliament contemplated by the Act. This is, as stated by a Full Court of the Federal Court in Barton v Croner Trading Pty Ltd ^[82] , that in the Acts Interpretation Act the word "instrument" is used "to include, at least, any writing designed to carry into effect a statute ." ^[83] Their Honours instanced as examples of that use s33(3), s34B(2)(c) and s46(a) (as it then stood). The considerations mentioned in this paragraph enable full effect to be given, in accordance with principles of statutory construction, to the width of the meaning of the word "instrument".

[55] The only decision of an intermediate appellate court to the contrary of the wider view of "instrument" is that of this Court in Director of Public Prosecutions' Reference No 2 of 1996. But there is no reference in it, or in the progenitor of the limited view of "instrument", Beale, to the decision of the Full Court of the Federal Court in Barton v Croner Trading Pty Ltd, to the views of Kirby P and McHugh JA in the New South Wales Court of Appeal in Peters, to the reasons of Brennan J in Re Brian Lawlor ^[84] or to the terms of s4(1) and s4(1A) of the Acts Interpretation Act. Nor is the statement of Gummow J in the then recently decided Propend Finance noticed in Director of Public Prosecutions' Reference No 2 of 1996. It is apparent that the point did not assume great significance in the reference, especially as it was considered that on no view could extrinsic material be used in the construction of the notices. Had the decision in Barton v Croner Trading Pty Ltd been cited in Director of Public Prosecutions' Reference No 2 of 1996 it would no doubt have been followed, as being the decision of an intermediate appellate court on legislation applying nationally, unless the Court of Appeal had been convinced it was wrong ^[85] . Since the decision in Director of Public Prosecutions' Reference No 2 of 1996, there has been the further decision of the Full Court of the Federal Court in Malubel Pty Ltd v Elder and the refusal of special leave to appeal from that decision, entailing, as it did, approval of Peters.

[56] From this review of the cases, the history of s46(1) and the terms of s4 we conclude that s46(1) is not limited to legislative instruments or legislative powers and that the opinion to the contrary in Director of Public Prosecutions' Reference No 2 of 1996 should no longer be followed ^[86] . The consequence is that, even if the warrant on its true construction was in excess of the power conferred by s219B(5) and s219B(6) it was, nevertheless, by reason of s46(1)(b) a valid instrument to the extent to which it was not in excess of that power, that is to say, it was valid as far as it authorised the use of a listening device for listening to or recording words spoken by, to or in the presence of the applicant anywhere in Australia. Since all the words so listened to and recorded and put in evidence were spoken in Australia it follows that all the evidence obtained pursuant to the warrant was lawfully obtained and admissible.

[57] Even if, contrary to the conclusion we have just expressed, the warrant was not an "instrument" within s46(1), it was, in our opinion for the reasons which follow, to be read down on the application of common law principles so as to operate only, and validly, in Australia, with the consequence just stated. Because the effect of s46(1)(b) is to reverse the common law presumption that a statute is to operate as a whole ^[87] and because its intention is to ensure that a regulation is construed as being within the power of the authorising Act, it is said by Pearce and Argument ^[88] that the statutory provision supersedes the common law doctrine of severance. On the assumption that this is correct even though not adverted to in several cases considering the two bases for severance, it does not preclude consideration of the common law doctrine here, for our consideration of that doctrine proceeds on the hypothesis that, contrary to our view, a warrant is not an "instrument" within the meaning of s46(1), so that, by hypothesis, that provision is inapplicable. In delivering the judgment of the High Court refusing special leave to appeal in Malubel Pty Ltd v Elder [No 2] ^[89] McHugh J noted that a series of decisions in the Federal Court had held that in some circumstances the invalid portion of a search warrant, issued pursuant to a statutory power, like the invalid portion of other statutory instruments, might be severed leaving the rest of the warrant valid. His Honour continued: "The applicable principle is stated in Peters v AG (NSW) ^[90] . Those decisions of the Federal Court should be taken to have settled the question." The Federal Court decisions are mentioned in the passage from Peters. There, as McHugh JA, his Honour had, with the concurrence of Kirby P, stated:

"The Attorney-General for New South Wales then contended that the warrants were severable. He relied on Parker v Churchill (1985) 9 FCR 316 at 320-322 ..., where Burchett J at first instance and the Full Court of the Federal Court ((1986) 9 FCR 334 at 350 ...) recognised that the doctrine of severability applied to warrants which were issued in excess of power: see also Re Arno; ex parte Forsyth (1985) 9 FCR 557 at 573-575 ... This Court should follow those decisions. However, it is not possible to sever a warrant where the invalid provision forms part of an inseparable context or would operate differently or produce a different result from that which was intended: cf Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 371."

Reference to those Federal Court decisions shows that, except, perhaps, so far as reference was made to Coward v Allen, the discussion in them of severance did not turn on s46(1)(b) but upon common law principles. The same is true of the decisions of Beaumont J in Brewer v Castles (No 3) ^[91] and of White J and the Court of Criminal Appeal in Ibbotson v Chaney ^[92] . In Coward v Allen ^[93] Northrop J considered that the offending words in the warrants there in question could be severed without affecting the validity of the rest of the warrant, either under s46(b), as it then stood, or at common law, citing in the latter connection the dissenting judgments of Lords Reid and Upjohn (who alone had to consider severance) in Kingsway Investments (Kent) Ltd v Kent County Council ^[94] . The same approach seems to have been taken by the Full Court of the Federal Court in Malubel Pty Ltd v Elder ^[95] , for Parker v Churchill and other cases were first discussed and then it was noted that reliance was additionally placed on Peters with its reference to s32 of the Interpretation Act 1987 (NSW), which led to discussion of s46 of the Commonwealth Act. All the cases so far cited apart from Kingsway Investments concerned the severing of warrants. More generally, common law severance of subordinate legislation is discussed in the leading cases of Olsen v City of Camberwell ^[96] , where the judgment of the Full Court was given by Cussen J, Bank of New South Wales v The Commonwealth, especially per Dixon J ^[97] , and Department of Premier and Cabinet v Birrell (No 2) ^[98] . (Any difference as to the onus of proof with regard to severability between the judgment read by Cussen J and that of Dixon J is presently immaterial.)

[58] The one difficulty for severance at common law is that, on the hypothesis that is being made, the warrant is to be construed as authorising the listening to or recording of words spoken "anywhere" or "anywhere in the world". That is, it uses a general word or expression, which is not distributive, as opposed to a separable word or expression; and earlier authorities in the High Court would suggest that in the case of a general word or expression severance at common law was not possible: for example, Bank of New South Wales v The Commonwealth ^[99] and cases there cited. But, whatever may once have been the position, in Harrington v Lowe ^[100] six justices made the following considered, albeit strictly obiter, statement, which we take to represent the law of Australia:

"As to the common law in Australia, the position, as established by the earlier decisions of this Court to which we have referred appears to be that a valid operation of the sub-rules might be preserved after textual surgery by operation of the 'blue pencil' rule so that the valid portion could operate independently of the invalid portion, or, failing that, by treating the text as modified so as to achieve severance. But this latter step may be taken only where in so doing there is effected no change to the substantial purpose and effect of the impugned provision, and, in particular, there is not left substantially a different law as to the subject-matter dealt with from what it would otherwise be."

Amongst the authorities cited by their Honours in support of the proposition quoted above was the speech of Lord Bridge of Harwich (agreed in by three others of their Lordships) in Director of Public Prosecutions v Hutchinson ^[101] and the speech of Lord Goff of Chieveley giving the judgment of the Privy Council in Commissioner of Police v Davis ^[102] , where Lord Bridge's test of "substantial severability" was applied, and held to be satisfied, in a case where it was necessary to modify the text in order to achieve severance. The passage from Hutchinson referred to in Harrington v Lowe and in Commissioner of Police v Davis includes Lord Bridge's expression of opinion that a rigid insistence that the test of textual severability must always be satisfied if a provision is to be upheld and enforced as partially valid will in some cases have the unreasonable consequence of defeating subordinate legislation of which the substantial purpose and effect was clearly within the law-maker's power when, by some oversight or misapprehension of the scope of that power, the text, as written, has a range of application which exceeds that scope. With appropriate modifications to apply to the exercise of an administrative power that passage might well be thought appropriate to the striking out of the word "Australia" that occurred here.

[59] As already indicated, this is not a case where severance can be effected by the "blue pencil" method. If the text of the warrant is treated as modified so as to read "anywhere in Australia", no change to the substantial purpose and effect of the warrant is effected and, in particular, it is not a substantially different administrative document regarding the subject matter dealt with ^[103] from what it would otherwise be. Or, to adopt the language of McHugh JA in Peters, derived from that of Dixon J in Bank of New South Wales v The Commonwealth, the warrant with the text modified as mentioned above would not operate differently or produce a different result from that which was intended by its signatory. Obviously, the geographical area of potential operation of the warrant is reduced, so that, in theory at least, it burdens both the applicant (the "particular person" named in the warrant) and, more importantly, third parties less severely. The case is quite unlike that of Coco v The Queen ^[104] , relied on by the applicant, for there not only had the judge signing the warrant misapprehended the nature and scope of the power he was called on to exercise in taking the view that he had power to authorise entry on premises for the purpose of installing and maintaining a listening device in circumstances where that entry otherwise would have constituted a trespass, but what was bad was an integral and essential element of what was good, so that the approval granted was wholly void and severance was impossible.

[60] We state for completeness that, even if each of the conclusions to which we have come on interpretation, severance pursuant to statute and severance at common law were wrong, we would not uphold this ground, for this is a clear case for the application of the proviso to s568(1) of the Crimes Act 1958. Had the judge concluded, as on the present hypothesis he should have done, that the warrant was unlawful, the discretion whether to exclude on grounds of public policy in accordance with Bunning v Cross ^[105] the material gathered as a result of the warrant's being carried into effect as being evidence obtained illegally or unlawfully would have fallen for exercise. In our view, there was only one way in which it could properly have been exercised, namely, in favour of the admission of the material. This is because the hypothesised illegality was in no way the product of the conduct of the police, but was due to a slip by the judge in striking out from the document presumably presented to him one more word than appropriate. Further, the police never intended to use a listening device outside Australia. Nor did they do so. That is, the invalid part of the warrant was not relied on. The material in question was obtained in good faith and in reliance on a judicially signed warrant. There was no contumelious or deliberate disregard of the law and no knowing participation in an illegal act. Nor did the hypothesised illegality detract from the cogency of the evidence. This case is even stronger than R v Nicholas ^[106] , for there the form of warrant had apparently been drafted by or on behalf of the police. Elsewhere in these reasons we discuss the test or tests for determining whether there has been no substantial miscarriage of justice within the meaning of the proviso. Whichever mode of expression is adopted, it is amply satisfied here. ^[107] The same result would follow if it be said (although this was not argued) that, on the hypothesis being made, the judge erred in failing to consider the exercise of his discretion.

Ground 7

[61] When he came to argue this ground, Mr Wendler said that he was limiting his submission to August 1996 and that the ground as so limited fell or succeeded with ground 11, which had already been argued. He simply submitted that the applicant was not linked with the transfer of money in August. We conclude elsewhere that ground 11 fails.

Ground 9

[62] At 1.30 am on Sunday 13 October 1996 Senior Detective Ian Whitehead of the Victoria Police and Federal Agent Paul Buric of the Australian Federal Police were among the members of the task force who took part in the raid at 6/570 Buckley Street, Keilor East, outside which the applicant was arrested. Within the premises, as we have previously noted, police found two damaged wooden crates inside which had been four wooden wall plaques. As noted in para[5], the police had earlier intercepted those crates and had substituted, save for small amounts, white powder for heroin which had been secreted inside the wall plaques. At that time the police also inserted a listening device into one of the wall plaques. The raid was, as we have said, the culmination of many months investigation and surveillance by the task force.

[63] Upon entering the premises during the raid the investigators found the crates had been forced open and one of the wall plaques had been opened and plastic bags of white powder removed and placed on the floor. The officers also found a large number of items consistent with drug trafficking. When the raid commenced the applicant was outside the house and was carrying one of the wall plaques. When confronted by police he sought to escape, using force, but was detained. The Crown alleged that inside his tracksuit pants he had the listening device which had been in one of the plaques.

[64] Whitehead gave evidence that at 2.20 am, at the scene, he informed the applicant of his rights. He said that he told the applicant that he was not obliged to say anything and that anything he did say might be recorded and be given in evidence. Whitehead asked the applicant if he understood that, and the applicant said, yes. He then informed him that he had a right to communicate or to attempt to communicate with a friend and a legal practitioner. The applicant said he understood, but said he did not wish to exercise those rights. After providing some further details the applicant was driven to the headquarters of the Australian Federal Police at La Trobe Street Melbourne.

[65] At 3.02 am a video and audio taped record of interview commenced, with Whitehead and Buric questioning the applicant. A short time after commencing the interview the applicant was again cautioned, this time by Buric, about his right not to answer questions but that anything he did say might be used in evidence. He said he understood. He was also informed of his right to communicate with a friend or relative and said that he understood and that he did want to exercise that right. Likewise, when advised of his right to consult a solicitor the applicant said he understood and wished to do so. The interview was suspended at 3.05 am to allow him to exercise those rights.

[66] At 3.28 am the interview recommenced. In conformity with the requirements of s23F of the Commonwealth Crimes Act 1914 the applicant was again cautioned about the fact that he was not obliged to say or do anything and anything he said might be used in evidence. Once again, he acknowledged that he understood. He said that he had contacted a solicitor, Mr Balmer, by telephone. He was then asked:

"Q24 All right. What what legal advice have you received in relation to this investigation? Are you willing to participate in this interview?

A Well, I mean um - - -

Q25 Look, we don't want to know exactly what you've been told, but has the - Mr BALMER advised you of a course of action?

A Yes.

Q26 He has, okay. We don't want to know what that is, but we're quite prepared to ask you questions here - are you happy to be here with us at this point?

A (inaudible)

Q27 Okay."

[67] The police told him that, for operational reasons, they were rescinding their agreement that he could contact a family member or friend, at that time. No complaint is now made about that action.

[68] The interview then proceeded, in English, with the applicant apparently freely answering questions. It was, as we have said, the Crown case that the applicant gave a number of answers which the jury could conclude were lies, concerning his place of residence, his marital status, the source of his income and other matters.

[69] The applicant told police he could not afford to pay child maintenance, because he was on the dole. He said he made a living by conducting a door-to-door sales business, selling laundry detergent. He said that John Li - a co-conspirator, on the Crown case - supplied the detergent products to him. He was asked questions about the company Ordosolve Pty Ltd.

[70] In response to a query whether he could understand the questions being put to him he said that he had lived in Australia for ten years and that he did understand the questions, so long as they were not put too fast. He was asked about calculations written on credit cards found in his wallet. He was asked how much money should have been in his wallet and he said that "at this stage, my mind is very confusing" (Q181). He was asked how he came into possession of business cards which had been found in his wallet and said that some of them must have been accidentally swept up by him from a shop counter, in recent days. He said he did not know the whereabouts of John Li.

[71] About an hour after the interview had commenced the questioning, at Q247, turned to the applicant's movements earlier that evening. He said that after eating a meal with his children he visited friends at the Buckley Street premises. He said that he drove a vehicle there. Then the questioning proceeded as follows:

"Q267 And what happened after you parked the four wheel drive there?

A. Well, best thing is ... I've nothing to say. I wait ^[108] until my solicitor come tomorrow and then he can answer everything. Is that all right? Because I - as you have mentioned that I have my right not to answer anything.

Q268 Yes, you do.

A All right.

Q269 Okay. That's exactly right.

A Yes, so if you've given me that opportunity, that right till tomorrow when I speak to him, right.

Q270 Well you - that's not a problem. If you want to talk to us again at any time, we'll be quite willing to talk to you.

A Thank you.

Q271 But at this point in time, we will still ask you questions. Okay, if you choose whatever the legal advice is that - if you choose not to respond to those questions, that's entirely up to you. We're not going to force you to answer any questions at all. But we will still - and it's our duty, to ask you questions. In fairness to you, to put the allegation to you so that you are fully aware of what that allegation is. Do you understand? Okay. Because we don't want there to be any element of doubt in your mind what the allegation against you is. Okay? So before we get to that actual allegation, can you tell me, how many times have you been to this address in Buckley Street - your friend's place?

A I can't remember.

Q272 Could you give me a rough figure?

A Well I wouldn't want to guess and wouldn't want to give a figure or I can't remember.

Q273 Okay. Would it be many times or is it several times?

A I can't - I have nothing to say.

Q274 I suggest to you it's obviously - - -

A What I'm worried - if I say - answering wrongly, right, at the end of the day - - -."

[72] The following three questions and answers were subsequently excised from the record of interview, which was tendered, after a separate ruling of the learned trial judge that they amounted to cross-examination and also concerned matters which had no relevance to the charge. The questioning continued and finally concluded at 5.02 am with the answer to Q405.

[73] Mr Wendler submitted to his Honour that the interview should have been brought to an end immediately the applicant gave his answer to Q267, or at least by Q269. Counsel submitted that the applicant had exercised his right to silence but the interviewers had simply ignored that fact and continued the questioning. Mr Wendler submitted, therefore, that the questions and answers after Q267 should be excluded on the basis that the applicant's participation in the interview at that time was not voluntary.

[74] Mr Wendler also submitted that the record of interview after Q267 should have been excluded because the questioning constituted a denial of the applicant's rights both under s23G(1) and also s23S of the Commonwealth Crimes Act 1914 ^[109] , thus rendering the answers inadmissible or appropriately to be excluded in the exercise of a discretion to exclude evidence unlawfully or unfairly obtained ^[110] . Finally, Mr Wendler submitted that the evidence should be excluded on the basis of what his Honour characterised as a "fairness" discretion ^[111] .

[75] The issue as to s23G centred on the question whether arrangements had been made by the applicant for the attendance at the interview of Mr Balmer and, if so, whether the interviewers had failed to defer questioning for a reasonable time to allow the solicitor to be present at the interview. The learned Judge rejected the contention that s23G(1) had not been complied with. That section is not relied on in the appeal before us. Instead, Mr Wendler relies solely on s23S. That section (which both reflects and acknowledges the continued application of common law principles) reads as follows:

"Nothing in this Part affects:

(a)
the right of a person to refuse to answer questions or to participate in an investigation except where required to do so by or under an Act; or

(b)
any burden on the prosecution to prove the voluntariness of an admission or confession made by a person; or

(ba) any burden on the prosecution to prove that an admission or confession was made in such circumstances as to make it unlikely that the truth of the admission or confession was adversely affected; or

(c)
the discretion of a court to exclude unfairly obtained evidence; or

(d)
the discretion of a court to exclude illegally or improperly obtained evidence."

[76] His Honour conducted a voir dire during which the officers Whitehead and Buric, and also the applicant, gave evidence.

[77] His Honour gave comprehensive reasons for his ruling on the admissibility of the record of interview. He found that the applicant (as he confirmed in his evidence on the voir dire) was aware that he was entitled not to answer questions. His Honour said that the applicant had nodded his affirmation to the question, at Q26, whether he was happy for the interview to proceed. He found that from the resumption of the interview at Q16 until Q267 the applicant gave no indication that he did not wish to answer questions or wanted the interview suspended. His Honour found that both before and after Q267 the participation of the applicant during the record of interview was voluntary.

[78] His Honour found that the applicant's comprehension and command of the English language was such that he was not disadvantaged or inconvenienced by virtue of the fact that the interview was conducted in English. He said that his close observation of the applicant during the videotaped interview and also during his evidence on voir dire satisfied him that the applicant answered questions during the interview deliberately, carefully and well knowing what he was saying and what meaning he was conveying.

[79] Although the exclusion of the evidence was sought on several different bases, it seems that attention focussed on the question of the voluntariness of the applicant's participation after Q267. The onus was upon the Crown to prove on the balance of probabilities that the record of interview was voluntary ^[112] . In seeking exclusion on discretionary grounds the onus was on the applicant to persuade the judge on the balance of probabilities that the evidence should be excluded ^[113] .

[80] In Ireland ^[114] Barwick CJ, confirmed the proposition to be drawn from numerous cases that "it was improper for police investigating the commission of a crime to persist in questioning a suspect after an indication that he did not wish to answer any more questions." Counsel for the applicant submitted that such an indication was given here.

[81] The decision in Ireland turned on questions of fairness and lawfulness in the conduct of the interview ^[115] - and thus involved the exercise of a discretion - rather than on the question whether the interview was voluntary, but Mr Wendler contended that a denial of the common law or statutory right to silence would inevitably have led to the exclusion of the evidence whether on the basis that it was not obtained voluntarily or on discretionary grounds.

[82] In his ruling his Honour held ^[116] :

"Both of the police officers gave evidence as to their assessment of and response to Mr Ng's answer to question 267. Mr Buric stated (transcript p1004 to p1005) that he regarded the answer of Mr Ng to this question as a 'delaying or stalling tactic', and by inference did not accept that Mr Ng was genuine in what he then said. Mr Whitehead gave evidence that he regarded this answer by Mr Ng as another illustration of what he termed selectivity in answering questions by the accused (see transcript p1031). It must be understood that what was being said by Mr Buric and Mr Whitehead represented their view of the response of Mr Ng, at the time of the interview.

When the questions and answers in the sequence from 267-271 are read, I consider that the evidence of the two police officers is consistent with this. The questions which follow Mr Ng's answer to question 267 all appear to be based on an assumption that the interview is continuing, and that if Mr Ng wants to return with his solicitor 'at any time' he may do so. The two police seem to be focussing their attention on ensuring that Mr Ng understands that he did not have to answer questions, something which he then asserted and he confirmed.

Neither police officer appears to have then considered that Mr Ng may have been communicating or trying to communicate that he did not wish the interview to continue then, or at least, not with sincerity. Given that there had been no mention previously by Mr Ng of the attendance or impending arrival of his solicitor, there was no enquiry made of Mr Ng as to what it was that he meant in his answer to question 267 when he said that he would wait until his solicitor came tomorrow.

Again, that the police officers did not pursue this with Mr Ng is consistent with the evidence each of them gave about their understanding of what Mr Ng was conveying in meaning by his answer to question 267. The authorities to which reference has been made establish that the issue is and remains whether the answers given by Mr Ng were so given by him freely and willingly."

[83] In this passage his Honour introduced the question whether the applicant was "genuine" in what he said in answer to Q 267. As we will later discuss, his Honour made a similar reference at a later point in his reasons, and once again referred to the understanding which the interviewers held at the time about the intended meaning of what the applicant said.

[84] In considering his Honour's reasons for ruling that the interview was admissible it needs to be kept in mind that Mr Wendler had submitted to his Honour that the applicant's answer to Q267 conveyed both that the applicant wanted the interview to be delayed until his solicitor arrived (thereby asserting a right which was recognised under s23G) and also that he did not wish to answer any further questions, at all (thereby asserting a right recognised under s23S). The question whether the applicant had made an arrangement for a solicitor to attend the interview, although raised as an issue before his Honour, is not an issue pursued on appeal, but many of his Honour's remarks related only to the application for exclusion of the evidence by reference to s23G, although that is not always clear in his Honour's reasons. As we will discuss, it was only with reference to the submission concerning s23G that his Honour introduced the question of the genuineness of the answer made by the applicant to Q267.

[85] The contention made to the learned trial judge that the applicant should have been permitted to exercise his right under s23G to delay the interview until his solicitor could attend was challenged by the prosecutor, who argued that the applicant's statement in response to Q 267, insofar as it suggested that that he had engaged a solicitor who was proposing to attend the interview, was baseless. In other words, the prosecution contended that the applicant had not genuinely exercised a right under s23G.

[86] In his evidence on the voir dire the applicant said that in requesting that the interview be suspended so that his solicitor could attend he believed at that time that the solicitor would have visited him the next day. He agreed, however, that the solicitor had not said he would do so. His Honour held that there was a "fundamental lacking of credibility" in the answers of the applicant concerning what had passed between him and the solicitor. The applicant gave evidence that he had not asked the solicitor any questions, had made no request, nor any arrangement, for the solicitor to attend the interview, nor given personal details of his name and address, nor discussed fees. His Honour observed that the solicitor had not been called on the voir dire and no explanation for his absence had been given, thus leading to the inference that his evidence would not have assisted the applicant. His Honour held that no arrangement had been made for the attendance of a solicitor and that the applicant knew that to be the situation. Those findings provided the basis for his ruling (which appears later in his reasons) that no breach of s23G had occurred.

[87] His Honour concluded that in his evidence the applicant prevaricated, rather than concede that, as the transcript and video of the interview showed, after speaking to the solicitor he had told the interviewers that he was willing to proceed with the interview. His Honour concluded that the applicant did so knowing both from the caution that the interviewers had given to him at the outset of the interview, and from what he had been told by the solicitor, that he had the right to decline to answer questions at any time, and found that he was capable of exercising that right "when it suited him to do so". The applicant agreed that he knew he had that right, and agreed that he also understood that what he was again told, at Q271, was that he could decline to answer, if he wished. His Honour concluded that the applicant knew that the solicitor had not been engaged to attend the interview. Had he thought that the solicitor was intending to attend the interview then, his Honour observed, the applicant would have announced that when the interview recommenced after he had consulted the solicitor, rather than acknowledging at that time that he was willing to continue with the interview.

[88] Having rejected the contention that the applicant had sought to exercise, and been denied, his right under s23G to await the arrival of a solicitor, the next question which his Honour addressed was whether in giving his reply to Q267 the applicant had sought to exercise his right to silence under s23S.

[89] It is apparent from his Honour's reasons ^[117] that the question of voluntariness was entwined with discussion of breach of s23G or s23S and that had his Honour accepted that there had been a breach of either section then questions and answers after Q267 would have been excluded, either on discretionary grounds, or else, it seems, on the basis that the answers, from that point, would have been involuntary. His Honour identified the relevant question as being whether in answer to Q267 the applicant "was saying, and intending to convey that he did not wish the interview to continue?" His Honour further refined the question, to be whether at and beyond Q267 the interview was one in which the applicant "freely and willingly" participated. His Honour held that the lack of credibility of the applicant's evidence, generally, on the voir dire, and, in particular, as to his dealings with the solicitor, did not resolve the question of voluntariness.

[90] The relevant question concerning the right recognised by s23S is whether the applicant had exercised his right of silence and communicated that to his interrogators. Of course, if a suspect exercised his right of silence he would retain the right to change his mind, and to decide he did wish to be questioned. Moreover, as the High Court held in Lee ^[118] , for an interview to be voluntary it does not require that it be "volunteered"; it will be voluntary if made in the exercise of a free choice to speak or be silent.

[91] As Brennan J held in Collins v R ^[119] the question of voluntariness is not an issue to be determined by reference to some hypothetical standard, but requires a careful assessment of the effect of the actual circumstances of the particular case upon the mind of the confessionalist. In this case there is no allegation made that the will of the applicant was overborne, by those conducting the interview, whether by duress, intimidation, persistent importunity, sustained pressure or undue insistence ^[120] . The complaint is, simply, that the applicant's expressed intention to exercise his right to silence was ignored.

[92] In Harris v Samuels ^[121] , to which his Honour was referred, Bray CJ held that when a person in custody clearly exercised his legal right to refuse to answer questions the questioning should not continue, but if it did then anything said which was detrimental to the interests of the person should normally be excluded from evidence. In R v Stafford ^[122] Bray CJ stressed that the right to silence "must be respected by the police and enforced by the courts". Those cases involved the exercise of the discretion discussed in Ireland, and were not concerned with the issue of voluntariness, but suggested that the exclusion of the evidence should result when the right to silence had been ignored.

[93] In the court below Mr Wendler contended that a denial of the right to silence would mean that the applicant's participation in the interview after Q267 was not voluntary. Neither the learned trial judge nor the prosecutor challenged that contention and the application was dealt with on the assumption that the contention was correct. A similar approach was adopted by counsel on both sides before us. It was to the advantage of the applicant that the issue was regarded as one raising the question of voluntariness rather than as calling for the exercise of judicial discretion by reference to cases such as Ireland, Cleland, Lee, Harris v Samuels and Stafford. That approach cast the onus on the Crown to justify the inclusion of the questions after Q267 rather than on the applicant to justify their exclusion.

[94] In our view the issue was one properly calling for the exercise of a discretion and did not of itself thereby raise a question of voluntariness. That was the view taken by this Court in R v Robinson ^[123] which concerned an application made on similar grounds. However, as the Court there noted the questioning of a suspect in total disregard of his strongly expressed wish to terminate the interview, of itself and when coupled with unfair questioning, constituted departure from proper interrogation standards which "clearly possessed the potential of overbearing the will of the applicant or of rendering the admission of statements made by him unfair or subject to exclusion as an expression of public policy." ^[124]

[95] Nothing turns on the characterisation of the issue for present purposes as it was accepted on both sides that if the applicant had been denied his right to silence then he could not be said to have freely and willingly participated in the interview, and that would have led to the exclusion of the answers, that being so whether the basis for exclusion was said to be because they were not voluntary or on discretionary grounds.

[96] His Honour concluded that the applicant was not stating or intending to convey in his answer at Q 267 that he declined to answer further questions. He ruled that it was a voluntary interview, in which the applicant gave his answers in the exercise of a free choice whether to speak or remain silent. In reaching that conclusion his Honour once again made reference to the genuineness of what the applicant had said to the interviewers, and appeared to place some weight on the opinion which the interviewers held as to the intended meaning and sincerity of what the applicant said. His Honour observed ^[125] :

"The fact remains that Mr Ng was under arrest and in custody. He had indicated in his answer to question 267 that he did not wish to answer further questions until his solicitor arrived tomorrow. I do not accept that Mr Ng was then genuinely expressing the wish to exercise his right to silence in the manner discussed in Harris v Samuels ^[126] and R v Stafford ^[127] . I accept the evidence of Mr Buric and Mr Whitehead as to their perceptions of what Mr Ng was then doing. In my opinion, his answer to question 267 was similar to his behaviour in the witness box before me, that is, engaging in prevarication and evasion."

[97] The two passages of his Honour's reasons which we have quoted made references to the genuineness of the applicant's statements to the interviewers and might suggest that in considering the question whether the interview after Q267 was a voluntary one his Honour had regard to the opinions of the interviewing officers as to the intended meaning of the applicant's words. If his Honour did, in fact, have regard to those factors in deciding the question of voluntariness the ruling might well be tainted by error. On close examination, however, we do not believe that his Honour did adopt an erroneous approach to the question.

[98] In the first, more lengthy, passage of his Honour's reasons, to which we earlier referred, above, he made reference to the understanding of the officers Buric and Whitehead as to what the applicant intended by his answer to Q267. The opinion of Mr Buric was that the answer at Q267 was a "delaying or stalling tactic". It was not Buric who asserted that the applicant was not "genuine" in what he said in answer to Q267; it was his Honour who introduced the word. He inferred that Buric believed that the applicant was not "genuine" in what he said in answer to Q267. Whitehead, however, regarded the answer at Q267 as being "another illustration of . . . selectivity in answering questions by the accused". Thus, while Buric's belief seems to have been predicated on the assumption that the applicant was purporting to exercise a right under s23G, to delay the interview until a solicitor could attend, Whitehead seems to have understood the applicant to have been exercising a right to silence, albeit on a question by question basis.

[99] On the appeal counsel for the respondent submitted that his Honour did not make any error of principle in his approach to the question of voluntariness but that if the words used by the applicant in answer to Q267 amounted to his declining to answer questions (which he submitted they did not) then it was open to his Honour to conclude that it was only that question, or questions on the topic addressed by Q267, which the applicant declined to answer, and not all further questions, on any topic. The topic on which he declined to answer was said by counsel to concern a particular motor vehicle. It is difficult to accept that explanation. Question 267 was the first question about the events of the evening at the premises where the applicant was arrested. The issue which was about to be pursued was not his use of a motor vehicle, but what had happened after he arrived at the premises where the containers containing the drugs were opened. It must have been obvious to the applicant that the questioners were about to proceed to areas on which the applicant was likely to be very vulnerable to incriminating himself. It is difficult to imagine why an announcement that he wished to exercise his right to silence (if that was, in fact, what he had announced), would, at that moment, have been other than genuine, or would not have extended to any questions on the topic of the events which had taken place after he arrived at the premises where he was later arrested.

[100] We do not read his Honour's reasons as constituting a finding that the answer to Q267 constituted an announcement by the applicant that he was declining to answer questions on a particular topic, but rather as being a finding that he attempted to delay the interview by a false assertion that a solicitor would be in attendance the next day. In the first passage of his reasons, quoted above, his Honour used the word "genuine" in the context of the applicant's contention that he believed that a solicitor would attend the interview if it was delayed, and was therefore, in effect, exercising his right under s23G. His Honour did not believe the applicant's contention, in that respect.

[101] In the second passage the use of the word "genuinely" was otiose. We are satisfied that his Honour was merely intending to pronounce his finding, as he did, unambiguously, elsewhere in his reasons, that the answer to Q267 was not intended to be a pronouncement that the applicant declined to answer any further questions. His Honour concluded that the applicant was not exercising his right to silence and, having not persuaded the interviewing officers to delay the interview on account of the impending arrival of his solicitor, the applicant thereafter freely participated in the interview, well knowing his right (and exercising it, at times) to decline to answer such questions as he saw fit.

[102] His Honour's references to the opinions of Buric and Whitehead as to what the applicant meant by his answers convey an impression that the exercise of a right of silence might be dependent on the subjective assessment of the interviewing officers as to whether the interviewee was genuine or sincere in seeking to do so. We do not consider, however, that it was for that purpose that his Honour referred to the opinions of the two officers, but, rather, his Honour was exploring the question whether by his words the applicant was attempting to convey that he wished to exercise his right to silence.

[103] His Honour perceived from the response of the officers after Q267 had been answered (as thereafter demonstrated by their questions, and confirmed by their evidence) that they thought the applicant was addressing only the question whether he might have a solicitor present the following day, and thus might delay questioning until then. His Honour reached that conclusion notwithstanding the apparent difference in the perceptions of Buric and Whitehead as to what the applicant meant by his response to Q267. His Honour observed that the fact that the applicant had not previously mentioned the proposed attendance of a solicitor was a factor in the officers' not making any enquiry about what the applicant meant by his answer to Q267, and their not taking seriously the suggestion that the interview might be delayed for the purpose of the attendance of a solicitor. Furthermore, because his answer referred to the role of a solicitor (when the officers knew that he had not engaged a solicitor for the purpose of attending the interview) it did not occur to either of them that the applicant was asserting his right not to answer any questions, at all.

[104] His Honour concluded that the questions asked immediately after Q267 "all appear to be based on an assumption that the interview is continuing", and he concluded that the officers had not understood that the applicant was exercising a right to silence, "or, at least, not with sincerity". It is difficult to understand what his Honour meant by this last phrase, which was directed to the question of what the officers may have thought was meant by the words of the applicant. If the applicant had stated that he did not wish to answer questions then that statement should have been taken at face value.

[105] The references by his Honour in the passages of his reasons cited above to the genuineness or sincerity of the applicant's statements caused us initial concern. A clear statement by a detained person that he did not wish to be further questioned would be all that was required to bring the interview to an end. The exercise of the right to silence is not dependent on an assessment being made by the interviewing officers, nor by the trial judge, as to the motives behind the exercise of the right, or the genuineness of the exercise of the right. It is difficult to understand why a person, in stating that he did not wish to answer questions, should not be taken at his word. Had his Honour's finding as to whether s23S was breached been affected at all by either his own or the officers' assessment of the sincerity or motives for what was, in fact, the exercise of the right to silence then his decision would have been tainted by error, but we do not consider that his Honour did make that mistake. On close analysis of his reasons, we are satisfied that his Honour did not find that the applicant had stated, at all, that he did not want to answer further questions.

[106] His Honour concluded that the applicant had not sought to exercise his right to silence. His conclusion in that regard was not qualified by any suggestion, or finding, that the applicant may have insincerely used words which otherwise suggested that he was exercising his right to silence. His Honour found that the applicant, in his response at Q267, was engaged in prevarication and evasion, but in doing so raised only the question of the attendance of a solicitor, i.e his right under s23G, and did not exercise the right to silence which he knew he had, and was confident enough to exercise if the interview was to proceed.

[107] In reaching his own conclusion on those matters his Honour had regard to what he perceived to be the response of the officers to what the applicant said, not because their opinion was relevant to the question whether the right had been exercised, but in testing whether he was right in his own conclusion that the words used by the applicant did not convey an intention to exercise a right to silence.

[108] The response by the officers to what the applicant said was relevant for another purpose, too. The belief held by the officers as to the applicant's sincerity, or intended meaning, was relevant to the question whether there was persistent importuning or deliberate disregard for, or overbearing of, the rights of the applicant. As we have discussed, the applicant asserted that he answered questions after Q267 only because he was tired, confused and frightened. He did not, however, point to any conduct on the part of the officers which reflected an intention to overbear his will or intimidate him in that way. The only suggestion of any anxiety on the part of the applicant arose at Qs.297-304, after the applicant said that he did not want to commit himself to a particular time of an event about which he was being questioned. He said, "I'd better leave it with my solicitor to answer this question". The applicant said to the interviewing officers that although he had been advised he did not have to answer questions, "you be very upset" if he did not. The interviewers assured him that they would not be, and that it was a matter for him as to whether or not he responded.

[109] As noted earlier, having considered the evidence both of the officers and the applicant his Honour was satisfied that the applicant's will was not in any way overborne by any conduct of the interviewing officers and, save for the contention that they ignored the applicant's exercise of a right of silence, no such allegation is made by counsel for the applicant.

[110] His Honour's finding as to the approach adopted and understanding held by the interviewers - which he gleaned from their questions asked after Q267 - was that they did not understand the applicant to be exercising his right of silence. That is a finding which might not be self-evident on a reading of the transcript of the interview, nor upon viewing the video tape of the interview. The manner and content of the questions asked immediately after Q267 might suggest a very different conclusion, namely, that the interviewers were very much alert to the fact that the applicant was seeking to exercise his right to silence and chose not to clarify that but, instead, to press on with the interview. The conflicting understandings of Buric and Whitehead as to whether the applicant was merely seeking to delay the interview or else was selectively exercising a right to silence on a question by question basis might also suggest that one or both of them well recognised the possibility that he was attempting to exercise his right to silence.

[111] If the interviewing officers were uncertain as to whether the applicant was expressing a genuine wish not to answer further questions (assuming that genuineness, or their opinion as to that, mattered) they could have put the issue beyond doubt by asking him whether that was so. Instead, at Q271, Whitehead, having said that "in fairness to you" he was going "to put the allegation to you so that you are fully aware of what that allegation is", then did nothing of the sort, but instead proceeded with an interrogation. Indeed, Qs275, 276 and 277 were subsequently excluded because they amounted to cross examination, and were also irrelevant. As Barwick CJ noted in Ireland ^[128] , there could be cases where notwithstanding a suspect's announcement that he declined to answer questions it was appropriate that the interviewers continued the interview for the purpose of conveying information to him. In this case, however, questions which might have constituted putting the allegations to the applicant so that he might be fully aware of what was being alleged against him did not commence until about Q322, and questioning before then amounted to interrogation.

[112] The question whether the applicant intended to exercise his right to silence, and by his words purported to do so, may be assessed, in part, by reference to the objective evidence of the video tape and transcript of his record of interview. In that respect our own perspective is similar to that of his Honour. Our perspective is not identical, however, because an understanding of the words and their meaning as used by the applicant on the video tape would be enhanced by hearing the evidence of the applicant on the voir dire, and by exposure thereby not merely to his use of language but also to his body language when giving evidence. In the present case the camera used for the video taping was placed so far from the applicant that it was difficult to observe his facial expressions and mannerisms when being interviewed. The advantage of observing the applicant giving evidence on voir dire, as a supplement to viewing the video tape, is particularly important when English was not his first language.

[113] His Honour concluded that the applicant did not announce and (notwithstanding his evidence to the contrary, on the voir dire) did not intend to announce that he would not answer further questions, thereby exercising what amounted to his right to silence under s23S. His Honour held that in making his answer to Q267 the applicant was only seeking to assert what amounted to his right under s23G, but his Honour held that was not a genuine exercise of the right, because, as the applicant well knew, he had no solicitor, nor were any arrangements in place for one to attend any interview.

[114] Thus, his Honour concluded that the answer to Q267 was not an assertion of a right to silence under s23S. As to that finding of fact, Mr Wendler accepted that the question on appeal was whether it was open to the learned trial judge to reach that conclusion. As was held by the Full Court in R v Buchanan ^[129] , the applicant has to demonstrate that it was not open to the judge to find that the answers from Q267 onwards were given voluntarily, or else, to put it another way, to demonstrate that, having regard to the evidence, the judge was bound not to be satisfied with regard to the voluntariness of those answers.

[115] If the judge has applied wrong principles in reaching his conclusion as to voluntariness then the appellate court will intervene, but otherwise will not intervene if it was open on the evidence to reach the conclusion which he did ^[130] . The Court of Appeal is not engaged in a re-hearing of the application to exclude the evidence. Even if members of the Court might have individually reached a different conclusion to that reached by the trial judge the Court does not have power to substitute its own findings of fact for those which were made by the trial judge unless there was no evidence on which his finding of fact was open to be reached, or unless the trial judge has misdirected himself in reaching his conclusion ^[131] .

[116] The advantages which the judge conducting a voir dire has in seeing a witness are very important. Words in type may convey a very different meaning and effect to the meaning and effect apparent when delivered in person by the witness ^[132] . The advantage which the trial judge has is not lightly to be discounted by an appellate court but will be where the judge having the advantage of seeing and hearing the witness "has failed to use or palpably misused his advantage" ^[133] , or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or was glaringly improbable ^[134] . The assessment as to credibility made by the trial judge may be displaced where in the opinion of the appellate court that assessment cannot stand in the face of other, incontrovertible evidence ^[135] , and the advantage which the trial judge has in assessing the evidence of witnesses should not be overstated by the appellate court so as to override its own obligation to assess the evidence when the grounds of appeal require that it do so. ^[136]

[117] His Honour placed great stress on his observations of the manner and content of the evidence given on the voir dire and also the manner and content of the applicant's answers on video during the record of interview. His impression that the applicant was not asserting his right to silence, and thereby attempting to avoid answering any further questions, at all, was, he said, shared by the interviewing officers. As we have said, it was merely by way of confirmation of his own observations that his Honour referred to the belief held, he said, by the officers as to the answer of the applicant at Q267. We are not persuaded that there was any error in referring to the officers' evidence for that limited purpose. It was open to his Honour to conclude, as he did, that the applicant was a confident person who knew his right to decline to answer questions but decided to continue the interview and to consider his response (or whether to decline to make a response) on a question by question basis. His right to silence was exercised on several occasions for later questions ^[137] .

[118] In reaching his conclusion his Honour cited passages of the evidence of the applicant on the voir dire and relied upon his impression of the witness in giving his answers. We have seen the video tape of the interview, but we do not have the advantage which his Honour had of seeing the applicant give his evidence on the voir dire. We can not say that his Honour has misused his advantage in that respect. A finding of fact by a trial judge based on the credibility of a witness will not be set aside because the appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact ^[138] .

[119] We are not persuaded that the learned trial judge erred in principle in determining that the record of interview was voluntary. Although that conclusion might not have been one that would have been inevitably drawn by other judges, we can not conclude that it was not open to be drawn by the learned trial Judge. His Honour held that the applicant knew his rights, and was not intimidated or overborne, in the circumstances of the interview. The fact is that the applicant did exercise his right not to answer some later questions.

[120] In these circumstances, we conclude that it was open on the evidence for his Honour to have decided that it was a voluntary interview.

[121] The learned trial judge also rejected the application for the exclusion of the evidence in the exercise of a discretion to exclude evidence unfairly obtained, concluding that, in his opinion, apart from the suggestion that the answers after Q267 were involuntary, no other aspect of unfairness had been identified. No complaint as to his Honour's exercise of that discretion has been made before us. The question before us focussed on the voluntariness of the interview.

[122] Counsel for the respondent submitted that even if we had concluded that the answers after Q267 were not voluntary, there had been no miscarriage of justice. Alternatively, they submitted, there was no substantial miscarriage of justice, and the proviso to s568(1) of the Crimes Act 1958 should be applied ^[139] .

[123] Some of the answers in his record of interview after Q267 were identified in the prosecutor's final address as being lies which affected the credibility of the applicant. One issue which was dealt with in the record of interview was the finding of the listening device. The applicant's denial in that respect was not made only in the record of interview; he had denied such a suggestion at the scene of his arrest, and in his evidence the applicant again denied that he had any such device on his person when apprehended by police. The denials at the scene of his arrest, and in his evidence, that he had ever possessed such a device were said to be lies told in consciousness of guilt, but the prosecutor did not expressly use the answers contained in the record of interview for that purpose. If the jury had concluded that the listening device was found on the applicant then the denial of that fact in his record of interview could have added nothing to the denial made in his evidence and at the scene.

[124] The evidence against the applicant was overwhelming. Not only had he been the subject of surveillance over many months, when in company with the co-conspirators, and when handling the wooden crates, his incriminating words had been caught by listening devices. The opening of the crates in which the heroin was secreted occurred at Buckley Street when the listening device was operating and recorded the voices of two men. He was one of only two men at the premises at the time. When caught by police he was holding one of the wall plaques. He attempted to flee when confronted. His explanations to the investigators and to the jury for the events which had been observed, and for the words captured by listening devices, were nonsensical. Although the jury took some three days before delivering their verdict the length of their deliberations was probably due to consideration of the case of the co-accused, who was acquitted, and against whom the prosecution case was very much weaker.

[125] It is for the applicant to show that evidence wrongly admitted (if that was held to be the case) caused a miscarriage of justice. ^[140] The admission into evidence of involuntary answers contained in a record of interview might normally constitute a miscarriage of justice, but the answers in the record of interview after Q267 did not assume importance in this case. But, even if the latter part of the interview was wrongly admitted, and its admission did constitute a miscarriage of justice, the question arises whether the proviso to s568(1) would appropriately be applied, on the ground that no substantial miscarriage of justice had actually occurred. In Mraz v The Queen the test for determining whether a substantial miscarriage of justice had occurred was stated by Fullagar J, in an oft-cited passage, as being whether the applicant was deprived of a chance which was fairly open to him of acquittal ^[141] . In Crofts v The Queen ^[142] , on the other hand, the majority of the High Court posed the question as being, "can the appellate court say with assurance, that but for the admission of the inadmissible evidence, the conviction was inevitable?". In our opinion, even applying that test, having regard to the strength of the Crown case, we can say with confidence that the conviction, here, was inevitable.

[126] Before parting with this ground of appeal, we make a further observation. Given the fact that this was a third trial, relating to events from 1996, and given the strength of the Crown case, it is somewhat surprising that the prosecution should have pressed for inclusion in evidence of the whole of the record of interview. As we have made clear, the inadmissibility of the latter part of the record of interview was by no means unarguable. The prosecutor was taking a considerable risk that the admission of the evidence in the trial might have led to a successful appeal, and possibly another re-trial. We recognise that many considerations might bear upon a decision by prosecutors to press for the admission of items of evidence which are arguably inadmissible. In any criminal trial, and particularly in a case where circumstantial evidence is being relied upon, and where the offences are very serious, a decision to press for the admission of all relevant evidence, notwithstanding objection, might seem appropriate. The decision on the admissibility of evidence is, after all, a matter for the trial judge. Nonetheless, the admission of evidence which is subsequently held on appeal to have been inadmissible can have a serious impact on the administration of the criminal justice system. That potential consequence should be kept in mind by prosecutors when considering the appropriateness of urging trial judges to admit evidence in such circumstances.

Grounds 11 and 12

[127] These two grounds may be taken together. Before the learned trial judge objection was taken to the admission of evidence with respect to the allegations of the Crown that there had been an importation of heroin in August 1996, and evidence of the movements and activities of Nezir Nezirovski, in August and at later times, being a person who was not named in the presentment as a conspirator but who the Crown alleged was connected with the drug importation conspiracy. Nezirovski's movements had been the subject of surveillance in Melbourne in August, and on some occasions his words had been captured by listening devices. We have referred to some of this evidence in para[9] and para[10] of these reasons, and we will refer to some of it hereafter.

[128] Mr Wendler contended that the evidence was too speculative to be admitted and was irrelevant. Additionally, he contended that the prejudicial effect of the evidence outweighed any probative value. Counsel for the respondent contended that when the submissions were made to the learned trial judge objection was not, in fact, taken on the basis that the prejudicial effect of the evidence outweighed its probative effect, but no objection was taken to Mr Wendler's now so contending, and in any event that contention received little attention from Mr Wendler before us.

[129] Unlike the situation pertaining to events in August the Crown had direct evidence that heroin had been imported both in September and in October 1996. In both instances, so the Crown contended, wooden wall plaques were imported in which heroin had been concealed. In September investigators located remnants of two broken wall plaques and on examination traces of heroin were found on them. In October investigators detected substantial quantities of heroin concealed in wall plaques which had been imported, and substantially substituted the heroin with white powder, thus allowing a controlled delivery of the plaques to the conspirators.

[130] The Crown conceded to the jury that it had no direct evidence, at all, that heroin had been imported in August. The Crown's case was that between April and October 1996 the applicant, Wai Man Li and others, including Wanchai, conspired to import into Australia commercial quantities of heroin, and that pursuant to that agreement Wanchai transferred large sums of money to Thailand and Hong Kong from the Gold Coast. The Crown contended that the jury could infer that those sums were either profits from heroin importations or advance payments for further shipments of heroin, or both. It was the Crown case that during the period of the conspiracy to which the charge related three importations occurred, the first of which was in August 1996. The count of conspiracy to import commercial quantities of heroin did not, however, require the Crown to prove actual importation, at all, or at any time. The evidence of actual importations, if accepted, was, nonetheless, of obvious importance in proof of the charge.

[131] The Crown led evidence of surveillance of the applicant over several days from 18 August 1996, during which time he met Nezirovski several times. On 18 August Nezirovski handed him a large oblong parcel which the applicant placed in the boot of his car. The Crown submitted to the jury that that might have been an object containing heroin. Mr Wendler submitted that this was mere speculation. The size of the parcel was not consistent with the size of wall panels later used to conceal heroin.

[132] The Crown also relied on evidence of meetings, that same evening, between the applicant and Li and of conversations recorded the following day between the applicant and Li which a jury might well conclude were about drugs which had been compressed and about large sums of money referrable to those drugs. In the conversation reference was made to a person by the description "young man", who the Crown invited the jury to conclude was Wanchai, and to a person called "the bald headed man" who, the Crown contended, was Nezirovski.

[133] The Crown contended that there was evidence which linked the applicant to Wanchai at this time. On 16 August Wanchai was seen in Melbourne in the company of Li, and as we have said he provided cash for the purchase of a vehicle for Li. On the Crown case Wanchai had transferred very large sums of money to Thailand from the Gold Coast in early August, part of which the Crown suggested was the purchase price for an importation of heroin. The Crown also had evidence of the movements of the applicant, and others, in August which activity, whilst not proof in itself of a drug importing conspiracy, might have been regarded by the jury as consistent with such activity.

[134] The Crown also tendered transcripts of other secretly recorded conversations which had been collected over several days in August, including a meeting on 21 August between Nezirovski and the applicant. During that conversation large sums of money were discussed. It was open to the jury to conclude that Nezirovski was discussing with the applicant the cost of significant quantities of heroin and the appropriate frequency for importations of the drug. The Crown alleged that within a day of this discussion Wanchai returned to the Gold Coast and then transferred $630,000 to Thailand. It was an important part of the Crown case that the applicant, who was in receipt of unemployment benefits, had had access to large sums of money and that approximately $280,000 in cash had been found at the Buckley Street premises after the raid and a search of premises associated with the applicant at Victoria Street, North Melbourne, located a further $600,000 in cash.

[135] Of course, the jury might not necessarily have concluded that the conversation between Nezirovski and the applicant bore the interpretation which the Crown suggested. It was a matter for the jury to assess. In his evidence at trial the applicant said that the topic of conversation with Nezirovski was the sale of abalone, which was a business interest he said he had.

[136] Evidence relating to Nezirovski was not confined to August 1996. On 12 October 1996 Li and the applicant were observed leaving the wooden crates, in which substituted white powder was secreted, at the premises in Buckley Street. They then drove together to various locations and on one occasion were observed to meet with Nezirovski. Later that night the crates were broken open at Buckley Street and the white powder removed, shortly before the raid on the premises, and the arrest of Li and the applicant.

[137] It is unnecessary to set out the evidence of events in August and of the activities of Nezirovski in more detail. The learned trial judge summarised the evidence at some length and concluded that the evidence was probative and admissible. His Honour held the evidence should not be considered in isolation from all other evidence on which the Crown relied in support of the charge. His Honour carefully analysed authority concerning circumstantial evidence and concluded that the disputed evidence was appropriately placed before the jury.

[138] The evidence of events in August concerning the applicant, and of the activities of Nezirovski, went in proof of just some of the hundreds of overt acts relied upon by the Crown in proof of the conspiracy to import heroin between April and October 1996. The Crown case was based on circumstantial evidence. The Crown pointed to the associations between the applicant and persons, including Nezirovski, whom the jury could conclude were involved in drug importations in the relevant period. The Crown pointed, too, to the repatriation of large funds to Asia from Australia, by Wanchai, a student, and the huge sums of money found in the possession of Li and the applicant at the time of their apprehension. Such evidence was to be coupled with a considerable body of additional evidence, including the direct evidence of heroin importations in September and October 1996. There was evidence of the applicant's observed possession and dumping in September of remnants of wall plaques upon which traces of heroin were found; the finding of traces of heroin in his vehicle; his collection of the wooden crates and possession of a wall plaque with the substituted white powder, when apprehended in October. This and other material constituted powerful support for the Crown case that a conspiracy to import commercial quantities of heroin had taken place during the period to which the charge related.

[139] It was not essential to the Crown case to prove that there had also been an importation of heroin in August. The evidence of events in August may well have been regarded by the jury as incapable, in itself, of proving that there had been such an importation at that time, but the evidence might nonetheless have been regarded as offering support to the contention that there had been a conspiracy to import commercial quantities of heroin during the relevant period. The circumstances and events of August in which the applicant was involved were merely additional circumstantial facts which the jury could have regard to in determining whether the charge, overall, was proved. In any case in which circumstantial evidence is important it is open to the jury to decide that some items of evidence placed before them are not consistent with the offence and do not support the offence; it is the function of the jury to make its own assessment of the evidence placed before them. The fact that the jury might discount some items of evidence does not mean that those items were irrelevant and should not have been admitted.

[140] Although Nezirovski was not named in the indictment the charge did allege "divers other persons" as having been conspirators in addition to those named in the indictment. It was open to the jury to decide that the parcel which was exchanged between Nezirovski and the applicant had in fact been related to an importation of heroin; it was not mere speculation if they so concluded, having regard to the totality of evidence as to importations in September and October, and the evidence of conversations and activities in August, and in later months, which the Crown led.

[141] Where a charge of conspiracy is sought to be proved by circumstantial evidence the Crown is not confined to leading evidence only of such facts as are capable in themselves of proving the conspiracy ^[143] . The Crown is entitled to place before the jury a range of facts which in combination are capable of proving the offence beyond reasonable doubt. If any fact amounts to an indispensable link in the chain of reasoning then that fact will be required to be proved beyond reasonable doubt ^[144] but, otherwise, the jury is entitled to have regard to all facts, and to discard such facts as they consider not helpful or to be unpersuasive (even when taken with other facts) or inappropriate to be taken into account when determining their verdict. To apply the distinction identified by Dawson J, in Shepherd (as discussed by Callaway JA in R v Kotzmann ^[145] ), the Crown in this case was relying upon proof of guilt being established from an accumulation of detail which constituted strands in a cable; the Crown was not making use of the evidence relating to August events, and the role of Nezirovski, in a manner which might have constituted any or all of that evidence to be indispensable links in a chain of reasoning which had to be proved beyond reasonable doubt if the charge was to be proved. Nor, by hypothesis, was any piece of that evidence the sole evidence on the issue to which it was directed. Mr Wendler sought to examine particular items of evidence in isolation, and to then contend that they were open to innocent interpretations or were incapable of proving the offence or both. In any case concerning circumstantial evidence few items of evidence would be capable in themselves of proving the offence charged. It is the very essence of a circumstantial case that the items of evidence should not be examined in isolation, but must be considered in their totality.

[142] The evidence concerning the movements and activities of Nezirovski, and of events in August, was properly led on the basis that it was relevant and probative of the conspiracy, when taken together with all of the other circumstantial evidence on which the Crown relied. There was no basis for excluding the evidence on the ground that its prejudicial effect outweighed its probative effect. The evidence was not prejudicial, save to the extent that any evidence which is capable of supporting the proof of the Crown case is prejudicial to the interests of an accused person ^[146] .

[143] In our opinion, his Honour's rulings on the admission of this evidence were correct, and grounds 11 and 12 are not made out. The application for leave to appeal against conviction is, accordingly, dismissed.

Sentence

[144] The application for leave to appeal against sentence is founded upon the following grounds (excluding ground 6 which was abandoned):

1.: The judge erred by failing to take into consideration parity principles when sentencing the applicant.
2.: The judge erred by taking into account for the purpose of sentencing the alleged importation in August 1996.
3.: The judge erred by stating in his sentencing remarks:
"After conviction, [the applicant] gave to this court his current address as 9/40 Edgevale Road, Kew. The perpetuation of that is patently a falsehood, given that the premises were leased for a fixed term long since expired. It once more exemplifies the concern I have about the reliability of anything he has said to the court, absent independent evidence providing corroboration for any fact asserted by [him]."
4.: The judge erred in holding that the sum of $600,000 was not, in whole or in part, monies received by the applicant from lawful business activities.
5.: That the judge failed to adequately take into account the length of time the applicant had spent in custody before his trial - the two previous trials having been aborted through no fault of his.
6.: The sentence is manifestly excessive.

[145] We have already noted in para[1] that his Honour sentenced the applicant to a period of 25 years' imprisonment and fixed a non-parole period of 20 years. This was a sentence four years in excess of that imposed upon his co-offender Li, who - upon his plea of guilty - was sentenced to a term of 21 years' imprisonment with a minimum of 16 years. Mr Wendler contends that the sentence which his Honour imposed upon the applicant is manifestly and unjustifiably disparate from the sentence imposed upon the co-accused; and can be seen to be so having regard to certain remarks made by his Honour in the sentencing process.

[146] Before considering the individual grounds relied on, it is desirable that we make some general remarks about the character of this offending. The maximum penalty which the Parliament has fixed for conspiring to import a commercial quantity of heroin is life imprisonment. The quantities of heroin which were the subject of this conspiracy were many times the "commercial quantity" of 1.5 kg prescribed by the Customs Act (Cth). Based on the quantities found in the October importation, his Honour was bound to regard the applicant's offending as a very serious example of its kind. There can be no error in his Honour's finding that the "significant quantity" imported in October was the "minimum amount of this menacing drug smuggled into Australia pursuant to this conspiracy". Furthermore, in the light of the evidence to which we have referred in para[9], we are not prepared to attribute error to his Honour in sentencing on the basis that it was open to the jury to find, and that they had found, that an August importation had occurred. It was not suggested that his Honour was precluded from having regard to the overt acts of the conspiracy alleged for the purpose of sentencing provided that he was satisfied to the standard required that the acts had occurred and that the applicant had participated in those acts ^[147] .

[147] It is unnecessary for us to repeat at length what this Court, and other courts throughout Australia, have constantly said; namely that those who choose to make vast sums of money to enrich themselves at the expense of the health of society's youth must expect severe punishment if and when they are "brought to book". This was, on any view, a conspiracy to import vast quantities of a narcotic substance which is well known for its capacity to erode the otherwise vibrant character of our youthful citizens. His Honour was entitled to conclude that this applicant was motivated to participate in the conspiracy on account of greed, as demonstrated by the vast amounts of money which were being repatriated by the conspirators to other countries in a clandestine fashion; and as also demonstrated by the $600,000 found in his possession following his arrest. His Honour, in our view, was perfectly entitled to find that these moneys were the proceeds of the heroin conspiracy and was not in error in failing to find that the sum - or part of it - was the proceeds of lawful business activities. His Honour saw and heard the applicant, and those called on his behalf, give their evidence. Having regard to the whole of the evidence which was before him, it does not seem to us to be surprising that he rejected their evidence suggesting, or calculated to suggest, that the applicant was in possession of large sums of money representing proceeds from lawful business ventures. Other things being equal, the sentence imposed was, in our view, within the range of sentences open to be imposed for offending of this type and of this magnitude. Indeed, in this Court it was not contended to the contrary. This was a case where the prosecution had called for the maximum penalty of "life" imprisonment to be imposed. His Honour was not prepared to accede to that request although he was prepared to find that both the applicant and Li were "vital members of the conspiracy at a high level in the chain of command".

[148] Mr Wendler submits that "other things were not equal". In particular he submitted that the sentence imposed is unjustifiably disparate from that imposed upon the co-accused Li. There was insufficient in the material before his Honour, so it was submitted, to warrant the imposition of a sentence upon the applicant four years greater than that imposed upon Li. Mr Wendler acknowledged that Li's plea of guilty, apparent remorse, and enhanced prospects of rehabilitation entitled his Honour to discount Li's sentence below that imposed upon the applicant, but not to the extent of four years. In support of this proposition Mr Wendler submitted that his Honour's statement that the address the applicant had given, following conviction, of "9/40 Edgevale Road, Kew" was "patently a falsehood" (exemplifying his Honour's "concern" which he expressed himself to entertain "about the reliability of anything [the applicant] has said to the court") suggested that his Honour was increasing the applicant's sentence disproportionately above that imposed on the co-accused as a consequence of the applicant's plea of "not guilty" and his desire to defend the charge. Mr Wendler submitted that this Court should find that such was the case because of his Honour's ultimate adverse finding that:

"There is patently no remorse demonstrated by you, just as there is no acknowledgment of any wrongdoing by you in respect of this offence. I make these findings and observations as factors influencing my consideration of the need for deterrence of you personally, and of the question of your capacity for rehabilitation."

[149] Whilst we think that his Honour was making too much of the fact that the applicant was continuing "to claim" his address as the premises in Edgevale Road, we cannot agree that the remark demonstrated the imposition of a sentence upon the applicant which was disproportionate to the level of his criminality or the sentence imposed upon his co-accused. Nor do we think that his Honour's remarks concerning the applicant's lack of remorse, even taken with the "present address" remarks, should lead us to that conclusion. There may well have been a genuine basis for the applicant giving his address, after conviction, as "Edgevale Road". He was, after all, being asked to give some address and, given the fact that his wife had apparently "abandoned" him, he may well have regarded the address which he gave as the "closest thing" which he had to a residential address. However, as we see it, his Honour was not focussing so much on the response of the applicant to the request for the "present" address as he was on his conclusion that the applicant was, by virtue of his evidence, an inveterate liar who could not be believed upon any topic. This was a view to which he was entitled to have regard in his sentencing process, and we do not accept that the impugned comment which his Honour made is, in some undefined way, an indication that he has imposed a sentence which is disproportionately in excess of that which was imposed upon Li.

[150] Nor, in our view, was there any error in his Honour's conclusion about the "lack of remorse" demonstrated by the applicant. His Honour was not reaching that conclusion because the applicant had exercised his rights to put the Crown to its proof ^[148] . Rather, that conclusion was clearly based on his Honour's observations of the applicant during his trial, particularly when giving evidence. Placed in its proper context we cannot accept, as was submitted by Mr Wendler, that his Honour's statement:

"There is patently no remorse demonstrated by you, just as there is no acknowledgment of any wrongdoing by you in respect of this offence."

justifies the inference that his Honour was increasing the penalty imposed upon the applicant because he had defended the charge laid against him.

[151] The essence of Mr Wendler's argument in support of the applicant's application for leave to appeal against his sentence is that the disparity between the sentences imposed upon the co-accused is manifestly unjust ^[149] . It is put that a difference of four years between the head sentences and non-parole periods cannot properly be justified simply on the basis of the co-accused's plea of guilty, his degree of remorse, his previous good character and rehabilitation potential. It is submitted that, in the circumstances, the difference in penalty is such as to induce in the applicant and informed members of the community a justifiable sense of grievance ^[150] . As with grounds of appeal which assert that a sentence is "manifestly excessive", a ground which asserts "manifest disparity" between sentences imposed upon co-accused is not one which can admit of much argument. It is true, as Mr Wendler has pointed out, that there was little to distinguish the co-accused in terms of culpability in offending. Mr Wendler simply says that the sentence imposed upon Li is some 15% below that imposed on the applicant and the discrepancy cannot be justified by the factors to which we have referred. He points out that, whilst the co-accused had pleaded guilty, there was no suggestion that he had agreed to give evidence at the trial, although it should be stated that he had co-operated with the authorities to the extent of giving his agreement to a statement of implicating facts which were to be used against him for the purpose of imposing sentence.

[152] Having given the matter careful consideration, we do not accept the submission that, in the circumstances which the judge identified, there is an unjustifiable disparity between the sentence imposed upon the applicant and that imposed upon his co-accused which would warrant interference by this Court.

[153] Finally it was contended that the trial judge had not given sufficient weight, in fixing sentence, to the long period of time which the applicant had spent in custody prior to his trial. The lengthy period of more than three years could not be attributed to any fault on the part of the applicant, it was submitted. It was conceded that his Honour had made "some allowance" for this factor; but that the severity of the sentence imposed should lead this Court to the conclusion that insufficient weight had been attributed to it.

[154] We are not persuaded that his Honour's sentence reflects error of the type suggested. The "delay factor" was taken into account by his Honour in fixing sentences for both the applicant and Li. The delay was considerable, as his Honour acknowledged. It was largely the consequence of the aborted proceedings which preceded the ultimate trial. It was a factor, as his Honour recognized, which had to be brought to account in fixing appropriate sentences on the co-accused. For reasons which we have already given, we can see nothing in the sentences imposed on either of the co-accused which suggests to us that his Honour has given insufficient weight to delay.

[155] In our view none of the grounds in support of the sentence application have been made out; and accordingly that application, as well as the application for leave to appeal against conviction, should be dismissed.

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