R v Philip Ng
[2002] VSCA 108R
vPhilip Ng
Judges:
Winneke P
Batt JA
Eames JA
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:
-
Judgment date: 2 August 2002
Order
The application, as well as the application for leave to appeal against conviction, is dismissed.
Counsel for the Crown: Mr N T Robinson and Mr C Moisidis
Solicitors for the Crown: Director of Public Prosecutions (Cth)
Counsel for the Attorney-General for the State of Victoria (Intervening): Ms R M Doyle
Solicitors for the Attorney-General for the State of Victoria (Intervening): Victorian Government Solicitor
Counsel for the applicant: Mr G D Wendler
Solicitors for the applicant: Allan McMonnies
(1985) 159 CLR 264 .
(1986) 160 CLR 359 .
The Act has, since the trial, been repealed by s92 of the Juries Act 2000, which so far as material commenced on 1 August 2001 . We shall for convenience speak of the 1967 Act in the present tense.
Hansard, Legislative Assembly, Juries (Amendment) Bill, 6 September 1990 , at p516.
See Juries Act 1967 (ACT), s31A; Juries Act (NT), s37A; Jury Act 1995 (Qd.), s34; Juries Act 1927 (SA), s6A; Jury Act 1899 (Tas.), s39; Juries Act 1957 (WA), s18.
Cf Wu v The Queen (1999) 199 CLR 99 at 108, per McHugh J.
Cf Hansard, Legislative Assembly, 30 October 1990 , p1612, p1613.
Brown v The Queen (1986) 160 CLR 171 ; Cheng v The Queen (2000) 203 CLR 248 at 270.
See, per Kirby J, Brownlee v The Queen (2001) 75 ALJR 1180 at 1200 ff.
Cheatle v The Queen (1993) 177 CLR 541 .
Cheatle, supra; Katsuno v The Queen (1999) 199 CLR 40 .
Cheatle, supra; Kingswell (1985) 159 CLR 264 ; Brownlee (2001) 75 ALJR 1180 .
Brownlee v R, supra at 1183, per Gleeson CJ and McHugh J.
Cheatle at 552.
Cheatle, supra at 560; Brownlee, supra at 1191; Katsuno, supra at 64.
Brownlee, supra at 1183, 1184.
Brownlee, supra at 1186.
[1997] 1 VR 1 at 18, 20.
cf Brownlee, supra, at 1209 [147] per Kirby J.
(1995) 15 WAR 404 .
The Associate's endorsement on the presentment simply records the empanelment of 15 jurors.
At para[8], para[31], para[76] and para[103].
At para[156] and para[191].
(2001) 53 NSWLR 471 .
(1997) 188 CLR 114 .
Notably s372(3) as to ordering a separate trial of a count or counts.
Besides the provisions now in question, orders during a trial are authorised by, at least, s13(5), s45 (as to having a view) and s48(1) and s48(2). The giving of directions is authorised by, at least, s13(2), s32 and s44 (as to directing the continuance of a trial with a reduced jury).
The Rules of the Supreme Court do in fact permit authentication, by signing or sealing in criminal matters; see Chapter VI, r1.13(1) and r1.13(2).
[2001] NSWCCA 518 at para[35].
Especially at paras[8], para[25], para[31], para[62] to para[67], and [103].
At para[156] and para[161].
At para[8], para[62], para[76] and para[103].
(2001) 53 NSWLR 471 .
(2001) 123 A Crim R 30.
[2001] NSWCCA 518 . Numerous other cases can be found where courts have held, or declined to hold, that a particular order was made by implication. Often that is determined as a matter of construction, in the light of any admissible material, of an order that was actually made: R v Melbourne Justices; ex parte Warburton Franki (Melbourne) Ltd [1958] VR 84 at 92; Dinch v Dinch [1987] 1 WLR 252 , a decision of the House of Lords, especially at 263; Johnson v Valks [2000] 1 WLR 1502 , CA, at 1507; Glover v Glover (1964) 6 FLR 262 ; Kainhofer v Director of Public Prosecutions (No 2) (1996) 70 FCR 184 at 186; and In the marriage of Lutzke (1979) 5 Fam LR 553 at 555. Sometimes an implication will depend less upon the terms of the order (if any) actually made and more upon what may be called external factors, including the principle that an order of a superior court should be treated as valid and within jurisdiction if possible: Maher v Wallace Dairy Co Ltd [1984] VR 129 , FC, at 133; Murdoch v Crawford [1986] VR 97 , FC, at 98-99; Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203 , FC, at 208; Jacobson v Ross [1995] 1 VR 337 , FC, at 339. In Malvaso v The Queen (1989) 168 CLR 227 at 232- 233 and 236 , on the other hand, the High Court declined to treat the Full Court of South Australia as having by implication granted leave to appeal. None of the cases cited in this footnote apart from the last was, it may be noted, a criminal prosecution.
Katsuno v The Queen at 56. Compare Re Wakim; ex parte McNally (1999) 198 CLR 511 esp. at 555 and 557 and Gould v Brown (1998) 193 CLR 346 at 418-426 in the constitutional area.
The crossing out of "Australia" is not perfect, but the appearance of the line is that the word has been struck out.
(1997) 192 CLR 69 .
(1978) 141 CLR 54 .
The cases are legion, but they are comprehensively reviewed by Ormiston J in Centrepoint Custodians Pty Ltd v Lidgerwood Investments Pty Ltd [1990] VR 411 at 421-425 and by Rogers CJ Comm D in NZI Capital Corp Pty Ltd v Child (1991) 23 NSWLR 481 at 490-494. In light particularly of what was said by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352-353, both of their Honours tentatively, and in the case of Ormiston J obiter, considered that regard could be had to the deleted portions. Without purporting to be exhaustive we note that subsequently the Queensland Court of Appeal has taken a like view: Postle v Sengstock [1994] 2 Qd R 290.
[1907] VLR 428 , though there context was decisive: 431.
[1953] VLR 105 .
2nd edn, para[29.11] and especially para[30.14].
Andrews v Howell (1941) 65 CLR 255 at 281.
See para[49] below.
(1996) 190 CLR 311 at 328 and 345 .
6th edn, vol 2, 1313.
7th edn (ed Garner), 801; similarly Garner, A Dictionary of Modern Legal Usage, 2nd edn, 456. See also Walker (ed), The Oxford Companion to Law, 626-627.
2nd edn.
(1992) 35 FCR 284 at 299-300.
(1984) 1 FCR 254 at 262.
At 271.
(1993) 41 FCR 242 at 253-256.
See, for example, Love v Attorney-General (NSW) (1990) 169 CLR 307 ; Coco v The Queen (1994) 179 CLR 427 at 444; and Ousley at 99-100.
(1999) 162 ALR 625 at 636.
(1999) 90 FCR 513 at 529. His Honour did not in fact refer to Beale, but to the case next but one mentioned in the text. Moreover, his Honour did not use categorical terms but rather expressed a strong doubt that a visa was an "instrument" within the meaning of s33(3) of the Acts Interpretation Act.
[2001] FCA 1623 .
[1998] 3 VR 241 at 253; special leave was refused on 11 December 1998 .
(1952) 86 CLR 283 at 319-320.
Similarly, perhaps, Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 371 per Dixon J But at the time of those decisions s4, discussed below, did not refer to an instrument "of a legislative or administrative character".
(1968) 121 CLR 313 at 323.
(1978) 1 ALD 167 at 172.
(1979) 24 ALR 307 ; 41 FLR 338 .
(1984) 3 FCR 95 at 110.
(1984) 4 FCR 348 .
Contrary to what seems to have been Lee J's view, the power in question in Edenmead does not appear to have been legislative.
[2002] FCA 429 at para[14]-para[25].
Thus, in Australian Film Commission v Mabey (1985) 6 FCR 107 at 127 McGregor J in the Full Court of the Federal Court accepted the view of Brennan J for the purpose of discussion. In Leung v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 430 at 436 the trial judge accepted the concession that the court was bound to hold that a certificate of citizenship was an instrument for the purposes of s33(3), having regard to the decision of the Full Court in Barton v Croner Trading Pty Ltd, and referred also to the decision of Brennan J. On appeal Finkelstein J, with whom Beaumont J agreed, simply noted the two streams of authority, and stated that it was not necessary to resolve the difference of opinion: (1997) 150 ALR 76 at 84.
(1996) 188 CLR 501 at 567 (footnote omitted). No doubt this was obiter.
(1988) 16 NSWLR 24 at 41 (citation omitted). The decision in this case was affirmed by the High Court in Love v Attorney-General (NSW) (1990) 169 CLR 307 on a constructional ground and without reference to s32.
(1998) 88 FCR 242 at 255; special leave refused: (1999) 73 ALJR 269 .
(1998) 101 A Crim R 514 at 521; affirmed (1998) 19 WAR 404 .
[2002] QSC 109 at para[33].
(1984) 52 ALR 320 at 335.
As meaning "an instrument (including a statutory rule) made under an Act", and as including "an instrument made under any such instrument".
Emphasis added.
Commonwealth Parliamentary Debates, Vol.1, commencing at p789.
The marginal cross-reference to s31 of the Imperial Act at s32 of the Commonwealth Act as originally printed also makes this clear. S32 was repealed, and replaced with s46(a) and s46(b), by the Acts Interpretation Act 1937 (C'th.). S46 brought together the provisions until then in s2A and s32 and in s9A of the Acts Interpretation Act 1904 (Cth.)
At 794 and 809 .
At 832 (emphasis added).
Ousley at 99.
At 110.
Emphasis added.
Lee J referred, however, to the decision of the Full Court of the Federal Court on appeal.
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492.
Compare Nguyen v Nguyen (1990) 169 CLR 245 at 269-270. It follows that we do not accept the view expressed in Pearce and Argument, op. cit., para[30.7], or the reading of Azevedo v Secretary, Department of Primary Industries and Energy there indicated.
The King v Poole; ex parte Henry [No 2] (1939) 61 CLR 634 at 651-652; Andrews v Howell at 281; Bank of New South Wales v The Commonwealth at 371.
Op. cit., para[29.5].
(1999) 73 ALJR 269 .
(1988) 16 NSWLR 24 at 41.
(1984) 52 ALR 581 at 583.
In the Court of Criminal Appeal, see (1998) 19 WAR at 428 per Murray J (with whom the other judges agreed on this point).
At 334.
[1971] AC 72 at 89- 91 and 112 -114 respectively.
At 255-256.
[1926] VLR 58 .
At 368-372.
[1990] VR 51 at 62-66 per Gobbo J.
At 369-370. Even as to the operation of statutory severance provisions where general words or expressions apply both to cases within power and to cases beyond power, compare Pidoto v State of Victoria (1943) 68 CLR 87 at 108 and Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at 493. See also Harrington v Lowe at 327.
At 328 (footnote omitted).
[1990] 2 AC 783 at 811.
[1994] 1 AC 283 at 298-299.
The use of a listening device for listening to or recording words spoken by, to or in the presence of the applicant, a person suspected on reasonable grounds of having committed a narcotics offence, that use being likely to assist inquiries in relation to such offence.
(1994) 179 CLR 427 .
(1978) 141 CLR 54 .
(2000) 1 VR 356 at 389. The Bunning v Cross discretion was not the subject of decision in Coco, as appears from 448 and 462 , for evidence of a private conversation resulting from the use of a listening device in contravention of a section of the relevant Queensland Act was made inadmissible by another section of that Act.
It is unnecessary to consider whether the true view is that, since the material could not properly have been excluded from evidence, there was no material wrong decision of a question of law and no miscarriage of justice, for the ultimate conclusion would be the same.
The words "I wait" were not included in the transcript of the tape recording but the learned trial judge held (and counsel and the witnesses Buric and Whitehead agreed) that those words could be heard uttered by the applicant during the interview. Although the issue is not vital, we have viewed the videotape and listened with care to its content. Two members of the Court agree with the trial judge that the words "I wait" were spoken by the applicant at the point indicated. The third member believes the phrase and appropriate punctuation to be "... I've nothing to say about, until my solicitor come ..."
In one section of his reasons his Honour refers to s21G and s21S, which is merely a slip of the pen. His Honour was intending to refer to s23G and s23S, as he did elsewhere.
The Queen v Ireland (1970) 126 CLR 321 , at 335; Cleland v The Queen (1982) 151 CLR 1 .
A reference to the general discretion identified in The King v Lee (1950) 82 CLR 133 and by Lord Widgery in Jeffrey v Black [1978] QB 490 , as discussed by Stephen and Aickin JJ in Bunning v Cross (1978) 141 CLR 54 , at 74-75.
Wendo v The Queen (1963) 109 CLR 559 , at 562, 572.
Lee (1950) 82 CLR 133 , at 152-153, Cleland v The Queen (1982) 151 CLR 1 at 19.
(1972) 126 CLR 321 , at 333.
Supra, at 334-335, and see Bunning v Cross, supra, at 64-65, 72, 74-75.
Ruling 5 April 2000 : T 1195.
See, in particular. T 1193.
(1950) 82 CLR 133 , at 149.
(1980) 31 ALR 257 , at 307.
As discussed by Dixon J in McDermott v The King (1948) 76 CLR 501 , at 511.
Harris v Samuels (1973) 5 SASR 439 at 452, per Bray CJ, at 461, per Hogarth J, at 464, per Zelling J.
R v Stafford, at 399.
[1998] 1 VR 570 at 580 (Phillips CJ, Callaway JA and Vincent AJA).
Ibid, at 583. (As to the potential blurring of the distinction between issues of voluntariness and discretion in such circumstances, see Collins v R (1980) 31 ALR 257 at 314-315, per Brennan J In Duke v R (1988) 83 ALR 650 at 652, Brennan J observed that no narrow view should be taken of voluntariness; there must be the exercise of a free choice to speak or be silent.)
T1201.
Harris v Samuels (1973) 5 SASR 439
R. v Stafford (1976) 13 SASR 392 .
Supra, at 331-333.
[1966] VR 9 , at 10.
R v Kyriakou, D'Agosto & Lombardo (1987) 29 A Crim R 50, at 57.
R v O'Donoghue (1988) 34 A Crim R 397, at 401.
See Dearman v Dearman (1908) 7 CLR 549 , at 561-562, per Isaacs J.
SS Hontestroom v SS Sagaporack [1927] AC 37 , at 47, per Lord Sumner.
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 , at 844.
Agbaba v Witter (1971) 14 ALR 187 , at 196; see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588 ; (1999) 73 ALJR 306 .
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd, supra, at 614-622, per Kirby J.
Questions 273, 283, 294, 297, 339, 340.
Devries v Australian National Railways Commission (1993) 177 CLR 472 , at 479; Abalos v Australian Postal Commission (1990) 171 CLR 167 .
R v Konstandopolous [1998] 4 VR 381 , at 391-392.
S568(1) Crimes Act 1958; see R v Gallagher [1998] 2 VR 671 , at 677-679 per Brooking JA and the cases there cited.
(1955) 93 CLR 493 , at 514.
(1996) 186 CLR 427 , at 441, citing Glennon v The Queen (1994) 179 CLR 1 , at 8-9; Maric v The Queen (1978) 52 ALJR 631 at 635; 20 ALR 513 at 521.
Chamberlain v The Queen [No 2] (1984) 153 CLR 521 , at 535; Shepherd v The Queen (1990) 170 CLR 573 , at 580-581.
Shepherd v The Queen, at 579, per Dawson J.
R v Kotzmann [1999] 2 VR 123 , at 129. Phillips CJ and Batt JA adopted that analysis of Callaway JA.
R v Morris (1995) 78 A Crim R 465, at 469
Savvas v The Queen. (1995) 183 CLR 1 .
Cf Cameron v R (2002) 76 ALJR 382 at 384.
Cf Lowe v R (1984) 154 CLR 606 .
Postiglione v R (1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ.
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