Reported Decision : 122 A Crim R 542 New South Wales Court of Criminal Appeal CITATION : R v Chun Hing LAW [2001] NSWCCA 291 FILE NUMBER(S) : CCA 60152/99 HEARING DATE(S) : 27 July 2001 JUDGMENT DATE : 27 July 2001 PARTIES : Chun Hing LAW (Appellant) Regina (Respondent) JUDGMENT OF : Meagher JA at 1, 29; Kirby J at 30; Newman AJ at 2 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70022/97 LOWER COURT JUDICIAL Ireland J OFFICER : COUNSEL : M. Paish (Appellant) R. Sutherland (Crown) SOLICITORS : Naomi Hamilton Lawyers (Appellant) DPP (C'wealth) CATCHWORDS : Criminal law - Evidence - Accused not giving evidence - Right to silence - Distinction between comment and direction by trial judge - Circumstances where comment permissible - Contravention of Evidence Act 1995 (NSW), s 20(2). LEGISLATION CITED : Customs Act 1901 Evidence Act 1995 Weissensteiner v The Queen (1993) 178 CLR 217 CASES CITED: RPS v The Queen (2000) HCA 3 Azzopardi v The Queen (2001) HCA 25 DECISION : 1. Appeal upheld; 2. Conviction and sentence quashed; 3. Appellant to have new trial at a date and place to be fixed IN THE COURT OF CRIMINAL APPEAL 60152/99 MEAGHER JA KIRBY J NEWMAN AJ Friday, 27 July 2001 R v Chun Hing LAW JUDGMENT 1 MEAGHER JA: I will ask Newman AJ to give the first judgment. 2 NEWMAN AJ: This is an appeal against a conviction for conspiring to import not less than a commercial quantity of heroin into Australia contrary to s 233B of the Customs Act 1901. Accompanying the appeal is an application for leave to appeal against the life sentence passed on the appellant following his conviction. 3 A number of grounds of appeal were taken by the appellant. However, in view of the conclusion I have reached in respect of one of these grounds, it is unnecessary for me to deal with those other grounds. The ground I refer to his Ground 4, which is stated as follow: "The trial miscarried by reason of the trial judge's comments on the failure of the accused to give evidence in the circumstances of the trial." 4 Because of the conclusion I have reached as to the fate of this ground, it is also not essential for me to recount in detail the case brought by the Crown against the appellant, albeit, let me observe, a very strong case. It will suffice for the purpose of these reasons to summarise the Crown case in a pithy form. 5 The Crown case alleged that the appellant was a co-conspirator in five importations of heroin into Australia. Those importations were alleged to have taken place first in January 1994, second in July 1994, third in August 1994, fourth in November 1994 and the fifth one in January of 1995. The other co-conspirators in the operation involving the importations were alleged to be, amongst others, one Alan Tam Yu Wah (whom I shall hereafter refer to as Tam); Mao Huang Tung (whom I shall refer to as Mao); Brian Kuan (whom I shall refer to as Brian); Kevin Ho (whom I shall refer to as Ho); Yu Tit Hoi (whom I shall refer to as Hoi); and a Joseph Law Ling (whom I shall refer to as Ling). 6 Prior to the trial of the appellant all of the co-conspirators, with the exception of Joseph Ling Law whose whereabouts were at the time of the appellant's trial and, as I understand from the Crown today, still are unknown, were indicted for trial on a variety of charges relating to the alleged importation. After a series of forensic manoeuvres Mao, Tam and Yu ultimately pleaded guilty and were duly sentenced. Ho, who seemed to wish to defend the matter, also ultimately pleaded guilty and was also sentenced. He had not, as I understand the matter, been finally dealt with at the time of the appellant's trial. Kuan was found guilty by a jury following a plea of not guilty and he too was, accordingly, sentenced. 7 It was the Crown case that the first four importations evaded the attention of the authorities and were thus successful. It was the interception of the fifth importation which led to the trial of the appellant and his alleged co-conspirators. 8 The means by which the importations were arranged were, on the Crown case, strikingly similar. In each importation crates containing oriental objects d'art were airfreighted into this country. Not only did the crates contain the objects d'art but also heroin secreted within the legitimate cargo. The crates on each occasion were consigned to a number of addresses in inner suburban Sydney, then transferred to another address for repacking (called a "safe house" in evidence) and then the heroin was distributed into the community. 9 To carry out the conspiracy a number of real estate leases were entered into by the conspirators and various mobile phones and pagers were hired. Funds were transferred between this country and Hong Kong and other places. 10 As against the appellant it was alleged that he leased the premises used for the first delivery of the contraband for the second, third and fourth importations. He was not in Australia when the fifth consignment entered this country because of legal problems he had encountered in Hong Kong where he was occasionally resident. I say "occasionally" because his residential address was in Toronto, Canada. 11 The Crown case also alleged that the appellant took part in the transfer of funds between Australia and Hong Kong as one of the facets of the conspiracy. 12 As I have already observed, the Crown case mounted against the appellant can be correctly described as being a strong one. Not only was the appellant implicated by documentation and the evidence of observation which implicated him in the conspiracy but also one of his alleged co-conspirators, Tam, gave evidence in the trial which strongly implicated him. Furthermore, evidence was led which was probative of the appellant lying to police on his apprehension, which could give rise to an inference of consciousness of guilt. 13 In the face of this very strong Crown case the appellant did not give evidence. It was a reference to the appellant's failure to give evidence in the learned trial judge's summing-up which founds Ground 4 of the appeal. 14 The impugned passages in the summing-up are as follows (appeal book p 74): "I said I would return to the direction I gave you that the accused is entitled to say nothing at all in his defence and still ask you to find that some element, or elements, in the Crown case have not been proved beyond reasonable doubt, and that that is what the accused has done in this case and the fact that he has placed no material before you, does not constitute any kind of admission of guilt. There may be reasons, of which we are unaware why an accused person does not give evidence." 15 At appeal book p 75: "That is not in any way to place an onus of proof upon the accused, the onus of proof rests with the Crown and remains there throughout." 16 At appeal book p 83: "The next thing I wanted to say to you is this; that with respect to the facts that the accused didn't give evidence at the trial or call evidence on behalf of the defence other than the tendering of a small number of documents that will be before you, that the failure to give evidence cannot be presumed as an admission of his guilt and that in fact a failure to contradict or explain incriminating evidence in circumstances where it would be reasonable to expect it to be in the power of an accused to do so may make it easier to accept or draw inferences from evidence relied upon by the Crown." 17 Following their retirement the jury asked the following question: "Are the jury able to use the fact that the accused did not mount a defence in any way to support proof of guilt?" 18 His Honour directed the jury in the following manner (appeal book p 116): "The accused is entitled to say nothing at all in his defence and still ask you to find that some element, or elements, of the Crown case have not been proved beyond reasonable doubt and that is what the accused has done in this case and the fact that he has placed no material before you, does not constitute any kind of admission of guilt. There may be reasons of which we are unaware why an accused person does not give evidence. On the other hand, he has not denied or sought to explain any particular piece of evidence in the prosecution case and it is proper to have in mind that it is usually easier to accept uncontradicted evidence than evidence which is actively disputed. Similarly, an inference adverse to the accused may more readily be inferred in the absence of an explanation. An hypothesis consistent with innocence may cease to rational or reasonable (sic) in the absence of evidence to support it, when that evidence, if it exists, might be within the knowledge of the accused. The onus of proof rests with the Crown and remains there throughout." 19 His Honour's summing-up and his response to the jury's question took place in April of 1998. In my view, his Honour's directions were on all fours with the law which had fallen in particular from Brennan and Toohey JJ in the High Court in Weissensteiner v The Queen (1993) 178 CLR 217. Weissensteiner preceded the passage of the Evidence Act 1995 and, in particular s 20(2) of that Act which reads: "The judge or any party (other than the prosecutor) may comment on the failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned." 20 Also since April of 1998 the High Court has reconsidered the law in relation to the appropriate directions to be given in a criminal case where an accused person has not given evidence: see RPS v The Queen (2000) HCA 3 and, more importantly, in Azzopardi v The Queen (2001) HCA 25. There the majority of the High Court, consisting of Gaudron, Kirby, Gummow and Hayne JJ had these observations to make (p 19): "Another important matter to be noted with respect to Weissensteiner is that, as mentioned above, that case was decided in a context in which there was no prohibition on judicial comment with respect to an accused's failure to give evidence. That is not the case with s 20(2) of the Evidence Act . That sub-section enables comment to be made but it contains a prohibition against suggesting that the accused failed to give evidence because he or she is, or believes that he or she is, guilt of the offence charged. There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However, that will be so only if there is a basis for concluding that, if there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused, that a comment on the accused's failure to provide evidence of those facts may be made. The facts which it is suggested could have been, but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence. In RPS , McHugh J expressed the view that, if the circumstances of a case are such that some comment is permissible, the preferable course is for comment to be made in terms of a failure to offer an explanation, rather than a failure to give evidence. That was the approach that Gaudron J and his Honour endorsed in Weissensteiner , saying: 'it is the failure to provide an "explanation or answer ... as might be expected if the truth were consistent with innocence" ... which is of evidentiary significance and not the failure to give evidence as such. In many cases, an explanation can be offered without the giving of evidence ... Accordingly, directions should be given in terms of the unexplained facts, rather than in terms of the failure to give evidence or to meet the prosecution case ... or the failure to answer questions from investigating police.' In Weissensteiner , Gaudron and McHugh JJ were in dissent. Subject to one important qualification, however, the approach taken by their Honours in that case is one that conforms to s 20(2) of the Evidence Act . More to the point, to refer to the failure of an accused to give evidence, rather than his or her failure to offer an explanation is to risk contravention of the prohibition in s 20(2) against suggesting that the accused failed to give evidence because he or she was guilty or believed himself or herself to be so. The qualification to which reference has just been made is this: as already explained, a judge may comment on evidence, not give directions with respect to the evidence. If the circumstances are such as to permit a comment with respect to the failure to offer an explanation, it should be made plain that it is a comment which the jury are free to disregard. If made, it should be placed in its proper context. That requires identifying the facts which are said to call for an explanation and giving adequate directions to the jury about the onus of proof, the absence of any obligation on the accused to give evidence, and the fact that the accused does not give evidence is not an admission, does not fill gaps in the prosecution's proofs and is not to be used as a make-weight. And the comment should not go beyond that made in Weissensteiner , as adapted to refer to the failure to offer an explanation rather than the failure to give evidence. It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional. They will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case. Once that is appreciated, the supposed tension between Weissensteiner and RPS disappears. In Weissensteiner , the comment related to the absence of evidence of additional facts peculiarly within the knowledge of the accused; in RPS , there was no question of any additional fact known only to the accused merely the failure to contradict aspects of the prosecution case." 21 In essence, what the majority held was that observations in a summing-up in a criminal case which conform with that which fell from Brennan and Toohey JJ in Weissensteiner can only be made as matters of comment and identified by the trial judge as such, which comment the jury can disregard, but not to be given as a direction which the jury must follow. Here the impugned verbiage used by his Honour was that of direction, the very matter which the majority in Azzopardi held to constitute error. 22 The Crown submitted that a fair reading of the summing-up demonstrates that his Honour's were not in error. It was put that such was the nature and extent of the Crown case that the appellant, being the only person who could explain certain matters which ex facie implicated him in the conspiracy was such that a direction of the Weissensteiner type was appropriate. 23 However, as I have said, an observation in line with what fell from the High Court in Weissensteiner cannot be given as a matter of direction, only as a matter of comment. It follows that the impugned direction contravenes the law as explained by the majority in Azzopardi. The legal fiction that the law has always been as last determined by the Court of ultimate authority applies. 24 Accordingly, Ground 4, in my view, is made out. 25 In the light of the strength of the Crown case, I have considered the question of whether or not the proviso should apply. In determining whether the proviso should apply I have considered whether the misdirection did not deprive the appellant of a chance of acquittal. It has to be particularly borne in mind that the last of the misdirections, that given in response to the jury's question, arose late in the deliberations of the jury. 26 In these circumstances, I am driven to the conclusion that the proviso cannot be applied in this case because, in the circumstances of the case, it cannot be said that the misdirection did not deprive the appellant of a chance of acquittal. 27 As I have indicated earlier in these reasons, having concluded that Ground 4 must succeed, it is not necessary for me to consider the other grounds of appeal raised in the application for leave to appeal against the sentence. 28 The orders I propose are as follows: 1. Appeal upheld. 2. Conviction and sentence quashed. 3. The appellant is to have a new trial at a date and place to be fixed. 29 MEAGHER JA: I quite agree. In my view, on the current state of the authorities, a trial judge in his summing-up to the jury would be well advised never to refer to the silence of the accused, much less give directions on the topic. 30 KIRBY J: I also agree. 31 MEAGHER JA: The orders of the Court, therefore, are the orders proposed by Newman AJ. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.