Reported Decision : 119 A Crim R 327 New South Wales Court of Criminal Appeal CITATION : R v Kim Van Mai [2000] NSWCCA 517 FILE NUMBER(S) : CCA 60748/99 HEARING DATE(S) : Wednesday 6 December 2000 JUDGMENT DATE : 19 December 2000 PARTIES : Regina (appellant) Kim Van Mai (respondent) JUDGMENT OF : Meagher JA at 1; Hidden J at 2; Howie J at 22 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL Freeman DCJ OFFICER : COUNSEL : Richard Button (appellant) E Fullerton SC (Crown) SOLICITORS : Legal Aid Commission (appellant) Commonwealth Director of Public Prosecutions (respondent) CATCHWORDS : CRIMINAL LAW - appeal against conviction - knowingly concerned in importation of heroin - appellant did not give evidence at trial - direction given in accordance with R v OGD before High Court decision in RPS v The Queen - whether miscarriage of justice LEGISLATION CITED : Evidence Act 1995 Criminal Appeal Act 1912 Weissensteiner v The Queen (1993) 178 CLR 217 R v OGD (1997) 45 NSWLR 744 RPS v The Queen (2000) 74 ALJR 449 CASES CITED: Mraz v The Queen (1955) 93 CLR 493 R v Covill [2000] NSWCCA 231 R v Dang [2000] NSWCCA 269 R v Hannes [2000] NSWCCA 503 DECISION : Appeal allowed. New trial ordered. IN THE COURT OF CRIMINAL APPEAL 60748/99 MEAGHER JA HIDDEN J HOWIE J Tuesday 19 December 2000 Regina v Kim Van Mai Judgment 1 MEAGHER JA: I agree with Hidden J. 2 HIDDEN J: The appellant, Kim Van Mai, was tried by a judge and jury in the District Court upon a charge of being knowingly concerned in the importation into Australia of a quantity of heroin. He was found guilty and sentenced to a term of imprisonment. He appeals against conviction only. The trial 3 Most of the evidence in the Crown case was unchallenged. On 18 March 1997 a parcel containing dried fish products, in which heroin was secreted, arrived in Australia by air from Cambodia. The parcel was addressed to Mr Kim Ly at an address in Prairiewood, a suburb in the south-west of Sydney. 4 In the previous month, the appellant, who lived in Melbourne, had travelled to Sydney and taken up temporary residence at that address. A man called Sovan Pen, who was well known to the appellant, had an association with those premises. The two spent some time together before Pen travelled from Australia to Cambodia. He returned to Australia on 17 March 1997, the day before the parcel arrived. 5 On 19 March 1997 Customs officers detected the heroin. Australian Federal Police arranged a controlled delivery, which took place on the morning of 24 March by a police officer disguised as an employee of a courier service. The appellant and Pen were at the premises at the time, as was a woman whom the appellant understood to be Pen's girlfriend. The conversation at the time of the delivery was covertly recorded. The appellant was recorded as saying that it was the woman, rather than he, who was Kim Ly, the addressee of the parcel. That was not in fact the name by which he knew her. 6 Pen drove the appellant away from the premises, the appellant carrying the parcel inside a garbage bag. He got out of the car with the parcel at a nearby bus stop, put it down and stood about five metres from it. A little later Pen drove back and the appellant picked up the parcel and got into the car. 7 They drove to premises at Edensor Park, where the appellant got out of the car without the bag. Pen then drove alone to different premises in Edensor Park, which he entered. He then drove back and picked up the appellant. Both men were arrested soon thereafter. The parcel was retrieved by police from the yard of the premises at Edensor Park which Pen had attended alone. 8 In a recorded interview, the appellant told police that he knew nothing of the delivery of the parcel that morning, that he knew no-one called Kim Ly, and that he had not spoken to anyone at the house at Prariewood that morning apart from Pen and his girlfriend. It was the Crown case that these were lies demonstrating a consciousness of guilt. 9 In the interview, he also said that he had gone to the bus stop intending to travel by bus to Cabramatta, where Pen ran a restaurant. Pen had given him to understand that the bag which he was carrying contained oranges, from which juice was to be made. He walked some distance from the bus stop, leaving the bag unattended, so that he could get a clear view of the bus as it approached to make sure that he caught the right one. Pen, he said, came back and collected him from the bus stop, taking him to visit his (Pen's) daughter. He left the bag in the car, asking Pen to take the oranges to the restaurant himself. Pen picked him up about twenty minutes later, and where Pen had been in the meantime he did not know. 10 It was the Crown case that this account should be rejected out of hand. It will be recalled that the heroin arrived in Australia in a parcel containing dried fish products. One of the matters the Crown relied upon was evidence from witnesses that the parcel emitted a distinct odour of fish. 11 Accordingly, the Crown sought to make out its case that the appellant was knowingly concerned in the importation by inference from the proved circumstances, including his lies to the police. The appellant did not give evidence. It is this which gives rise to the only ground of appeal. The appeal 12 The basis of the appeal is that the learned trial judge erred in his directions to the jury about the significance of the fact that the appellant did not give evidence. His Honour reminded the jury of the burden and standard of proof borne by the Crown and explained that the appellant was under no obligation to give evidence, that the jury should not conclude that he had taken that course because he was guilty and that there could be many reasons consistent with his innocence why he might have done so. His Honour then continued: In the present case however, when judging the value or the weight of the evidence which has been put forward by the crown as establishing its case against the accused you may take into account the accused election not to deny, contradict or explain the matters about which he could have given direct evidence from his personal knowledge. You may think that it is only common sense that in a situation where a Crown witness and the accused are directly involved or seem to be involved in a particular set of events that the persons best able to give evidence are those who made the observation on the part of the Crown and the accused. Where the evidence called by the Crown is left undenied or is uncontradicted any doubts which you may otherwise have been entertaining about the evidence of the Crown witness may more readily be discounted and the evidence of that witness may more readily be accepted as the truth, that is the approach which you may take although you do not necessarily take that approach. In any event perhaps some of the thrust of that particular direction is taken out of that direction by virtue of the fact that the accused's explanation and his version of what went on that day, what he did and why he did it, are in fact in a way before you because his record of interview is in evidence and he has accordingly given his version to the police. That version in the record of interview is accordingly a possible explanation on the part of the accused. It does not have the same quality as evidence which is given on oath, it is not subject to cross-examination by the Crown, but nonetheless he may be content to rely upon that as being the explanation and not give it again as it were by giving evidence in this trial. Of course what he said in that record of interview is able to be used by Mr Cattini as an explanation and it is open to attack by the Crown as being unbelievable on your part as an explanation, but you look at it and give it such weight as you think it is entitled to in the light of what you believe is established by the other material before you, the sworn evidence. 13 These directions were in accordance with this Court's approach to s20 of the Evidence Act 1995 expressed in R v OGD (1997) 45 NSWLR 744, per Gleeson CJ at 750-2. In particular, his Honour's direction that the Crown evidence and the inferences for which the Crown contended might be more readily accepted when the appellant had not chosen to deny, contradict or explain matters of which he must have had personal knowledge was consistent with what the then Chief Justice had to say in OGD at 751, by reference to extracts from the judgments in Weissensteiner v The Queen (1993) 178 CLR 217. The trial took place before the more recent decision of the High Court in RPS v The Queen (2000) 74 ALJR 449, in which the appropriateness of a direction of that kind was re-examined and doubt was cast upon that aspect of the judgment in OGD: see the joint judgment at par 30. 14 We were referred to recent decisions of this Court where, in the light of RPS, convictions were set aside after trials in which directions of the kind impugned in this case had been given: R v Covill [2000] NSWCCA 231, R v Dang [2000] NSWCCA 269. At par 27 of the joint judgment in RPS, referring to Weissensteiner, their Honours recognised that there may still be some cases in which a direction of that kind would be appropriate. The Crown prosecutor in this Court conceded that the present is not such a case. In any event, the direction was deficient because it failed to specify the particular evidence as to which "the absence of an explanation" was "of sufficiently compelling character" to warrant a direction of that kind: R v Hannes [2000] NSWCCA 503, per Spigelman CJ at par 164. 15 Accordingly, the Crown prosecutor fairly acknowledged that the challenged direction - that is, the first half of the passage from the summing-up quoted in par 11 of this judgment - is erroneous. She argued, however, that the error was neutralised by what his Honour then went on to say. She contended that the effect of the second half of the quoted passage was that the appellant had put forward his version of events in the recorded interview with police, so that it could not be said that there were matters raised in the Crown evidence within his personal knowledge which he had left unexplained. In the circumstances, she submitted, it may well have been to the benefit of the appellant that his Honour did not particularise the evidence to which the direction related. 16 There is some force in this argument, and the direction that the appellant's account in the interview was not on oath and not subject to cross-examination was appropriate, and is commonly given in cases where an accused elects not to give evidence but relies upon exculpatory statements in a police interview. Nevertheless, I am not persuaded that what his Honour said about the appellant's interview was sufficient to remove the prejudice caused by the erroneous direction. That direction was not withdrawn. Rather, his Honour's reference to the interview was prefaced by the qualified statement that "perhaps some of the thrust of that particular direction" was "taken out" by the fact that the appellant gave police his version of relevant events. 17 In any event, there was a matter of significance in the Crown case which was not explained at all in the appellant's interview. I have referred to evidence that the parcel containing the heroin smelt of fish, tending to give the lie to the appellant's suggestion that the bag he carried to the bus stop contained oranges. That was not put to the appellant during the interview, apparently because the interviewing police had no statement to that effect at that time. Indeed, there had been an earlier trial of this matter at which the jury could not reach a verdict, and counsel for the appellant informed us that no evidence to that effect had been given at that trial. It emerged for the first time when some witnesses made additional statements after the first trial, and that development was the subject of cross-examination of those witnesses on behalf of the appellant at the second trial. 18 For these reasons, I am satisfied that his Honour's error was more than academic and the ground of appeal is made out. The proviso 19 The Crown prosecutor submitted, however, that the appeal should still be dismissed by the application of the proviso to s6(1) of the Criminal Appeal Act. In the light of what was said to be the strength of the Crown case, she argued that his Honour's error had not occasioned any substantial miscarriage of justice. She placed reliance upon the combination of circumstances pointing to the appellant's guilt outlined above: his presence in Sydney at the relevant time and his association with Pen, his presence at the premises at Prariewood on the day the parcel was delivered and his involvement in its reception, his dealings with the parcel thereafter, together with what was said to be his lies to police about material matters. 20 However, the live issue in the case was the mental element necessary to establish the crime. This involved proof of the appellant's knowledge not only of the presence of a proscribed drug but also of its importation into Australia. Knowledge of the former might readily be inferred from the circumstances, but not necessarily of the latter. I am not satisfied that the Crown case was so compelling that it could be said that, notwithstanding the error in the summing-up which has been identified, the appellant has not "lost a chance which was fairly open to him of being acquitted": Mraz v The Queen (1955) 93 CLR 493 per Fullagher J at 514 Orders 21 I would allow the appeal and quash the conviction. Counsel for the appellant submitted that a verdict of acquittal should be entered, as this was a second trial and the non-parole period specified would expire in October of next year. However, I am of the view that the appropriate order is that there should be a new trial. 22 HOWIE J: I agree with Hidden J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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