Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Lau v R [2014] NSWCCA 179 Hearing dates: 02/07/2014 Decision date: 12 September 2014 Before: Hoeben CJ at CL at [1] Harrison J at [130] McCallum J at [131] Decision: (i) An extension of time be granted within which the applicant can seek leave to appeal against conviction. (ii) Grant leave to the applicant to appeal against conviction. (iii) Dismiss the appeal against conviction. (iv) In relation to the application for leave to appeal against sentence, grant leave to appeal. (v) Allow the appeal against sentence. (vi) Quash the sentence imposed on the applicant by Flannery DCJ on 10 May 2012. (vii) In lieu thereof the applicant is re-sentenced to a term of imprisonment with a non-parole period of 6 years, commencing 30 October 2010 and expiring 29 October 2016, with a balance of term of 3 years expiring 29 October 2019. Catchwords: CRIMINAL LAW - CONVICTION APPEAL - attempting to possess a commercial quantity of an unlawfully imported border control drug - 102 kilograms of pure heroin - whether a miscarriage of justice because of lack of qualifications of expert interpreter called in Crown case - whether verdict of jury unreasonable or could not be supported by the evidence - whether evidence as to flight properly admitted - evidence of Crown expert not misleading - differences in interpretation between Crown and defence experts not of significance in conduct of trial - differences in interpretation adequately explained by differences in audio equipment - strong circumstantial Crown case - on whole of the evidence open to the jury to be satisfied beyond reasonable doubt as to guilt - evidence of flight properly admitted - no breach of s137 of the Evidence Act 1995 in admitting evidence of flight - conviction appeal dismissed - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE - whether principle of parity properly taken into account - no significant difference in level of criminality between applicant and co-offender - differences in subjective case of applicant and co-offender - sentence of co-offender manifestly inadequate - parity principle not properly applied - need for applicant to be re-sentenced. Legislation Cited: Criminal Code (Cth) - ss 11.1(1), 307.5(1) Evidence Act 1995 - s79,s135, s137 Cases Cited: DJS v R; NS v R [2009] NSWCCA at [8], [11], [55] - [56], [135] and [136] Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 M v R [1994] HCA 63; 181 CLR 487 MFA v R [2002] HCA 53; 213 CLR 606 R v Burton [2013] NSWCCA 335 at [161] - [171] R v Cook [2004] NSWCCA 52 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [60], [64], [74] R v XY [2013] NSWCCA 121; 84 NSWLR 363 at [2], [42], [86] - [87], [171], [175] Ristevski v R [2007] NSWCCA 87 SKA v R [2011] HCA 13; 243 CLR Category: Principal judgment Parties: Nam Leung Lau - Appellant Regina - Respondent Crown Representation: Counsel: Mr LP Robberds QC - Appellant Mr P McGuire - Respondent Crown Solicitors: Jeffreys Lawyers - Appellant Commonwealth Director of Public Prosecutions - Respondent Crown File Number(s): 2010/360999 Decision under appeal Date of Decision: 2012-05-10 00:00:00 Before: Flannery DCJ File Number(s): 2010/360999 Judgment 1HOEBEN CJ at CL: Offences and sentence On 28 February 2012 the applicant was found guilty of an offence contrary to ss 11.1(1) and 307.5(1) of the Criminal Code (Cth), namely attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely 102 kilograms of pure heroin. The jury verdict followed a 22 day trial in the District Court and was delivered on the same day the jury commenced deliberating. 2The applicant was sentenced by Flannery DCJ on 10 May 2012. Her Honour sentenced the applicant to imprisonment with a non-parole period of 7 years, commencing 30 October 2010 and expiring on 29 October 2017, with a balance of term of 4 years, expiring 29 October 2021. 3The maximum penalty for an offence contrary to s307.5(1) of the Criminal Code (Cth) is imprisonment for life. 4The applicant seeks an extension of time within which to appeal against conviction and seeks leave to appeal against the sentence. CONVICTION Ground 1 - There was a miscarriage of justice by reason of: (a) The Crown witness, Ms Xiao Fang Chen (Ms Chen), giving evidence (expressly or impliedly) that she was accredited by a National Accreditation Authority for Translators and Interpreters Ltd (NAATI) to interpret from the Chinese language to the English language when she was not so accredited. (b) The failure by the Crown to disclose to the accused that Ms Chen was not accredited by NAATI to interpret from the Chinese language to the English language; and (c) New evidence which is also fresh evidence, namely that Ms Chen was not accredited by NAATI to interpret from the Chinese language to the English language. Ground 2 - The verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. Particulars The jury should not have been satisfied beyond reasonable doubt that the applicant believed or was aware that what he was attempting to possess was a border controlled drug. Ground 3 (a) The judgment of the court at trial should be set aside on the ground of a wrong decision on a question of law. (b) Alternatively there was a miscarriage of justice. Particulars of this Ground 3 The trial judge erred in ruling that evidence relied upon by the Crown as flight was admissible. (i) To prove that the applicant believed or was aware that what he had attempted to possess was a border controlled drug and; (ii) As evidence of consciousness of guilt. The trial judge also erred in failing to refuse to admit the evidence relied upon by the Crown as flight. SENTENCE The difference between the sentence imposed on the applicant and the sentence imposed on the co-accused, Ying Ma, is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice had not been done. Application for extension of time 5In support of the application for extension of time is an affidavit from Mr Green, the solicitor for the applicant, sworn 28 January 2014 which sets out the procedural history of the matter. The jury handed down its verdict on 28 February 2012, the applicant was sentenced on 10 May 2012 and a Notice of Intention to Appeal Against Conviction and Sentence was filed on 1 June 2012. Thereafter, there was delay in receiving legal advice as to whether an appeal should be pursued. 6Key dates are 28 August 2012 when the Public Defenders advised that they were not prepared to accept a brief to appeal; 4 September 2012 junior counsel was briefed to advise on merit; 15 October 2012 Legal Aid advised approval for senior or junior counsel, but not both; 19 November 2012 Legal Aid advised approval for senior counsel; 2 April 2013 a merit advice was received from junior counsel; 8 May 2013 senior counsel was retained to advise on merit; 26 June 2013 a merit advice was received from senior counsel; 20 September and 8 October 2013 Legal Aid advised approval for additional funding for preparation; January 2014 written submissions were received from senior counsel. 7While it cannot be said that the applicant's appeal rights were pursued with particular expedition, there are inevitable delays when Legal Aid is involved and understandably, solicitors can be reluctant to take significant steps in a matter until funding has been confirmed. Once matters are in the hands of counsel, then it is difficult for a solicitor to move matters forward in any significant way. In this case, the most significant delay occurred between requesting junior counsel to prepare a draft advice on merit and that advice being received, i.e. seven months. The various steps which I have referred to explain, while not fully justifying the extent of the delay. Nevertheless, the grounds of appeal in this matter raise real issues for consideration and in those circumstances, I am prepared to grant the extension of time sought. Factual Background and Crown case 8On 6 October 2010 a bill of lading was issued in Malaysia indicating that the consignee was Yi Xiang Trading Co of 565 Woodville Road, Guildford NSW. The goods, the subject of the bill of lading, comprised a container 20 feet in length, containing 295 solid timber doors. That container departed Malaysia on board the vessel ANL Windarra on 6 October. 9An email from Transcargo Worldwide of Malaysia (which issued the bill of lading) to an employee of the Australian freight forwarding agent International Cargo Express Pty Ltd (ICE) dated 8 October showed the estimated time of arrival in Sydney of the ship as 15 October 2010. 10ICE has customers who export and import to and from countries around the world and ICE Custom clears shipments for them. One of its customers was Yi Xiang Trading Co. ICE had dealt with Mrs Ma and her son, Bin Xiao, when acting for Yi Xiang Trading Co. 11Included in the documents relating to this cargo was an Australian Customs Entry for Home Consumption which showed that the first port was to be Sydney on 15 October and that the vessel was to discharge in Sydney on 18 October. The ship in fact arrived in Sydney on 19 October. A customs officer gave evidence that the vessel was initially due in Sydney on 15 October and that there was then an amended arrival date of 18 October. He confirmed that the actual arrival date was 9.17am on 19 October. 12On 9 October the applicant, a Chinese citizen and a resident of Hong Kong, used a travel agent in Hong Kong to purchase a Cathay Pacific Airways airline ticket for travel from Hong Kong to Sydney, departing 13 October and return from Sydney to Hong Kong departing 19 October. The flight was due to arrive in Sydney at 12.05pm on 14 October. 13On 19 October 2010 the applicant changed his return flight to Hong Kong to a new date 9 December 2010. It was necessary for the applicant to pay an additional $161 (AUD) for the change in the ticketing and that was a charge paid by the applicant. 14The applicant completed his Incoming Passenger Card into Australia showing his intended address as "Sebel Surry Hills". After his arrest, the police found in his possession a Google search made for accommodation in Sydney, arriving 14 October and departing 15 October. Two hotels were shown on the printout, one being Sebel Surry Hills and the other being Intercontinental Sydney. 15The applicant did not go to the Sebel Hotel but booked himself into backpacker accommodation at 790 on George Backpackers. The records of the hotel indicate that the applicant checked in as a walk-in guest and checked out on 15 October, having paid $80 for the accommodation. 16On 15 October the applicant attended 122 Princes Highway St Peters, which was a house owned by a Mr Jiang. Mr Jiang ran a business of renting bedrooms to tenants at that house. The applicant told Mr Jiang that he was from Hong Kong and was not sure how long he was going to be staying. Mr Jiang offered the applicant a room and the applicant returned later that day, moving into the room and paying a bond of $240 and two weeks rent of $240. On 29 October Mr Jiang wrote a receipt for $240 for a further two weeks rent paid by the applicant for the period 29 October to 11 November. 17On 15 October 2010 the applicant subscribed for a mobile telephone (XXXX XXX861) in his own name, giving his address as XXX Sussex Street, Sydney. That was the address of Sydney Residential Metro, a real estate agent, which did not have any interest in a hotel, backpacker or other budget accommodation, and whose business was not involved in short term rentals for periods of days or weeks for travellers in Sydney. 18The container was not immediately available to Mrs Ma on 19 October. On 21 October the container was off-loaded from the ship and taken to the Cargo Examination Facility of the Australian Customs Service at Port Botany. The container was there x-rayed and its contents were inspected. 19Each of the 295 doors was enclosed in a cardboard box. Ten of those boxes, numbered 901 to 910, were inspected by Customs and were found to contain pieces of wood screwed together to look like a door. When Customs removed the screws they found that in 9 of these dummy doors were 24 silver foil packages. In the tenth, Customs found 14 silver foil packages. Inside most of the silver foil packages were two white compressed blocks. 20Customs carried out tests and the blocks proved to be positive for heroin. There were 102 kilograms of pure heroin in the blocks. Each foil package contained approximately 700 grams of gross heroin in two blocks of 350 grams. The total estimated gross weight of the heroin was approximately 164 kilograms. The Australian Federal Police (AFP) became involved and they removed the heroin and repackaged the blocks in silver foil with plaster of Paris. The AFP put everything back together to make it appear that the contents of the container had not been touched. The container was delivered to Kennards Storage at 565 Woodville Road, Guildford on 29 October. Mrs Ma instructed two men to take the cardboard boxes and their contents from the shipping container and put them into her unit 38. Before the doors were delivered to Kennards, the AFP hid a microphone in one of the cardboard boxes and hid inside storage unit number 38 a video camera with two microphones. 21On 20 October 2010 telephone number XXXX XXX191 was subscribed in the name of Mr Wai Wong of 289 Beamish Street, Campsie with a date of birth of XX September 1980. 289 Beamish Street Campsie was the business address of Scorpio Communications Pty Ltd. A business card of that company was found in the applicant's possession after he was arrested. A telephone with that telephone number was also found in the applicant's possession after he was arrested. The applicant's date of birth was XX October 1977. 22On 20 October 2010 that mobile phone was used twice to ring the telephone number of Mrs Ma. On 22 October 2010 there was contact on three occasions between that mobile phone and telephones associated with Mrs Ma. On 28 October 2010 there was contact between that mobile phone and a telephone associated with Mrs Ma on two occasions and on 30 October 2010 the contact was on five occasions. 23At about 2.50pm on 30 October 2010 AFP members observed the applicant arrive at the Kennards Guildford premises in company with Mrs Ma and her son, Bin Xiao. All three persons entered the unit and began to disassemble the dummy doors. Silver foil packages from the dummy doors were observed being placed into black bags. 24The recordings made by the listening and optical devices inside the storage unit on 30 October 2010 showed the applicant opening 6 cardboard boxes, breaking into 6 plywood dummy doors and removing the silver foil packages which were placed in bags. The devices also recorded conduct and discussions which took place during that process. The applicant, Mrs Ma and Bin Xiao then carried the bags which contained 134 silver foil packages and placed them into the boot of the vehicle QMA 457 which was registered in Mrs Ma's name. 25At about 3.38pm on 30 October the applicant, Mrs Ma and Bin Xiao departed the Kennards Guildford premises in vehicle QMA 457 with the bags. At about 4.30pm on 30 October, vehicle QMA 457 travelled to 16 Beaumont Street in Campsie. A short time later, the applicant was observed to walk to Beamish Street and purchase two large black trolley suitcases. The applicant then walked back to 16 Beaumont Street. 26Thereafter, AFP members observed vehicle QMA 457 reverse into the driveway at 16 Beaumont Street. At about 5.47pm on 30 October the applicant was observed departing the premises in that vehicle. He was at the time the driver and sole occupant of the vehicle. 27At about 6.15pm on 30 October vehicle QMA 457 was stopped by police at the corner of Gordon Street and Livingstone Street in Lewisham after it was observed to have performed a number of U-turns. At the time the vehicle was forced to stop, the applicant was surrounded by unmarked police cars and a marked NSW Police van with its lights flashing. The applicant reversed his vehicle into the front of an unmarked police car, leaving the vehicle in gear and with the engine running. 28The applicant then alighted from the driver's side and ran down the middle of Gordon Street, between the traffic. When the applicant got out of the vehicle, AFP members had yelled "Stop, police". At least one officer had shown his police badge, the marked police van had its flashing lights engaged, two of the unmarked police cars had their flashing lights engaged and at least one of the unmarked police cars had its siren activated. A short time later, the applicant was stopped by two civilians and arrested by police. 29Immediately before the police arrested him, the applicant continued to resist arrest by attempting to avoid having his hands placed in handcuffs and he was observed to be attempting to dial his mobile telephone. Inside the car at this time were three suitcases containing 134 of the silver foil packages. 30During a search of the applicant at the time of his arrest, the following items were located: (i) 4 x mobile telephones. (ii) $1,527.80 in Australian currency. (iii) $4,915 in Hong Kong currency. (iv) A Hong Kong passport in the applicant's name. (v) An International Driving Permit issued on 11 October 2010. (vi) One small notebook, later found to have latent fingerprints matching the applicant's fingerprints, containing the following handwritten notes: ● "XXXX XXX688" (mobile telephone number of Mrs Ma) ● "565 Woodville Road Guildford NSW 2161" and ● Numerals "901-910". 31A search of vehicle QMA 457 revealed the following: (i) Two black trolley suitcases. (ii) A red trolley suitcase; and (iii) Four gloves in a Supre bag. The two black trolley suitcases and one red trolley suitcase contained a total of 134 silver packages, matching the inert packages placed inside the dummy doors delivered to the Kennards Storage unit on Friday 29 October 2010. 32The applicant was observed to use public telephones on 30 October to call Hong Kong telephone numbers (despite the fact that he had four mobile telephones with him when arrested). 33During the search of unit 38 at Kennards Guildford the following items were located: (i) One screwdriver. (ii) One claw hammer. (iii) Various gloves. (iv) 10 cardboard boxes labelled 901-910 (inclusive). (v) 10 dummy doors from the abovementioned boxes (6 dummy doors were opened and empty, 4 dummy doors were unopened with the concealment intact); and (vi) 96 silver foil packages containing substitute material (found inside the four unopened dummy doors). 34After his arrest, the applicant took part in an ERISP. In the interview, the applicant said that he was going to stay in Australia for seven days just to do sightseeing. 35He said that when he was in Hong Kong he went out for some drinks and got to know this friend and after knowing this friend, got to know another friend. The second friend's name was Ah Ming and after the applicant had been in Australia for about five days, Ah Ming contacted him by telephone by ringing his Hong Kong number and asked whether the applicant could do some work for him. Ah Ming said that he would pay the applicant a few thousand Australian dollars. He did not say what he wanted the applicant to do, just that it was something very simple. Ah Ming knew the applicant's Hong Kong telephone number. 36When asked about the car he was driving, the applicant said he borrowed the car from a woman. When asked for her name, he said "Is her name Ah Mee. I am so nervous I can't remember". It was put that the applicant was here referring to Mrs Ma's first name, i.e. Amy. 37The applicant said that the friend who rang his Hong Kong telephone number, whose name was Ah Ming asked him to contact this woman. He had never worked for Ah Ming before. The applicant's friends knew that he was coming to Australia. Ah Ming gave the applicant the woman's telephone number and told him to contact her to get the car. 38The applicant said that he agreed to help Ah Ming and then waited for his telephone call. On 30 October Ah Ming rang him. Ah Ming told him to go to his company and get something and bring it away. The applicant did not know what his company was or where it was. Ah Ming told the applicant to look for this person (whom he had previously mentioned in the interview) and get the car. Ah Ming told him that he would then call him and tell him where to leave the car, just leave it in a car park and he would tell him where to leave the stuff - "just leave it in the car park will do" (ERISP A139 - 142). 39The applicant said that Ah Ming told him to take a train and he would have someone waiting for him at the train station and someone would pick him up from there. The applicant could not remember the name of the train station. Ah Ming told him to meet the lady at the station and that was the lady who gave him the grey Toyota. After that they went to the company. A man was driving the car (surveillance evidence established that on 30 October Mrs Ma's son, Bing Xiao, drove her to a street corner across the road from Campsie railway station and the applicant got into the car). 40When asked what happened after arriving at the company, the applicant said that he did not do much, just took something from the company and then went away. He was asked what he picked up and he said that he did not know. He said it was square. He took whatever he needed to take and put it in some bags. The things which he put in the bag and which he did not know were silver in colour. 41He agreed that after he arrived he went inside, picked the things up and put them into the car. He did not know what was inside the silver square things. She did not tell him about them. He saw that they were very hard and he did not know what they were and even thought they were gold bars. 42He was asked what he was thinking when he thought the things were gold bars and his answer was: "I was thinking that those were gold bars, whether they would have any problems or not, why were they in such conditions, I don't know I was there already and I did not have much choice then. I was thinking that I should speedily move things and then left. In my heart I was thinking oh if it is gold bar, would that be any problem, but at that time I had no choice, or I thought maybe quickly do that work and then go." (ERISP A.206) 43 When asked why he did not walk away when he realised that they were gold bars and he might be doing something illegal, he said that he was guessing that these things were to do with tax evasion similar to when he had to pay duty when he brought an iPhone into Mainland China. 44At Q.296 he was asked: "So you knew that it was something that was wrong and against the law though? So you know that there is something wrong? A. So my thought was how quickly finish the stuff and I go. This is how I think and just quickly finish off." 45The applicant said that Ah Ming called him that afternoon, i.e. 30 October, and asked if he had parked the car in one of the car parks. This was after the applicant had left the company. Ah Ming wanted him to park the car with the luggage in it. He was told to leave the car and put the key on the tyre and then he could go. He had to leave the key on the rear tyre, he had to park the car in a sheltered car park, like a big shopping place. Ah Ming told him that after he had parked the car, he would ring him and the applicant would tell him which car park he was in. Ah Ming rang him every one or two hours and asked whether he had finished yet and if he did not know the place, he was to write it down and tell Ah Ming that he was at a certain car park. 46When the applicant was told that the AFP had recorded conversations which took place at Kennards, he said that the lady had told him that all those things were there but had not told him anything more about them. He said that he did not know where the stuff came from and that he had never seen any of the big wooden doors or the silver packets before he got to Australia. 47The applicant said that he had paid for his airline ticket with his own money. He said that he had a job in Hong Kong in car sales and was paid $HK3,000-4,000 a month. He said that Ah Ming told him he would be paid about $HK20,000 and he thought that was a lot of money. He said that when he met his friend and met Ah Ming he told his friend that he was going to Australia and that he had already booked his ticket and that Ah Ming heard that. 48The applicant said that Ah Ming telephoned him one day before he left for Australia and that all Ah Ming spoke about was that Australia was a fun place. The applicant confirmed that he had spoken to Ah Ming five days after he arrived in Australia. He said that he changed his return flight after he spoke to Ah Ming so that he could stay and do the work for Ah Ming. 49He was asked why he ran away from the police when they came to arrest him and said that he felt in his heart a sudden surge of pressure and did not know what was happening. He said that he did not understand their English and did not know who they were. He thought they were bad guys chasing him (ERISP - A.400 - 403). 50The applicant said that the woman Ah Mee or Amy asked him to take out the silver things which were inside the timber. He said that he did not know what the silver things were and that he did not know that they contained drugs. He said that he did not become aware of that fact until he was told by a police officer. 51The National Measurement Institute (NMI) analysis of the compressed powder found in the silver foil packages removed by the AFP demonstrated the presence of heroin with a purity of between 60.9 and 80.6 percent. The estimated wholesale value of the heroin was between $39,000,000 and $41,000,000. The estimated street value of the heroin was between $119,000,000 and $205,000,000. 52It was the Crown case that the applicant was a pre-arranged drug unpacker who came to Australia specifically for that purpose. The jury could come to that conclusion by seeing the manner in which the applicant unpacked the boxes. That he came to Australia specifically for that purpose could be inferred from the odd circumstances surrounding his travel arrangements. On that issue the Crown relied on the relationship between the applicant's original travel arrangements and the date on which the ship was expected to arrive in Sydney. When the ship was delayed, the applicant changed his travel and accommodation arrangements. The Crown relied on inferences to be drawn from the contact with Ah Ming after his arrival in Australia, his acceptance of the offer of some thousands of dollars to do an unspecified job and his contact with Mrs Ma which was arranged by Ah Ming. 53The Crown relied upon the false details provided by the applicant in relation to the two mobile telephones to which he subscribed in Australia. The Crown identified that as part of the accumulation of evidence which was to be considered by the jury. The Crown relied on the applicant's use of public telephones when he had access to four mobile phones. 54The Crown relied upon the offer made to the applicant by Ah Ming which (if one accepted the accuracy of that evidence) was the equivalent of five months salary before tax as something from which the jury could infer that the applicant must have known that whatever was inside the doors was highly valuable and highly illegal. 55The Crown relied on the surveillance evidence which the Crown argued showed particular familiarity and expertise on the part of the applicant in disassembling the wooden doors in which the silver foil packets were secreted. The Crown relied upon the appearance of the silver foil packets secreted in the doors in that way as being obviously prohibited drugs. This was particularly so when the point of origin of the doors was Malaysia. 56The Crown relied on the inherent improbability of the explanations given by the applicant in his ERISP. It relied upon some of the audio material from the Kennards storage facility of conversations between the applicant and Mrs Ma. On occasions they were whispering and Mrs Ma seemed not to want her son to know what was in the foil packages. The Crown relied upon the inherent improbability of the applicant not asking Mrs Ma what was in the foil packages unless he in fact knew their content. 57The Crown relied upon the inherent improbability of Ah Ming entrusting drugs with a value of between $50,000,000 and $200,000,000 to someone who was merely an acquaintance with an expectation that this person would in due course identify where he had left the motor vehicle containing the drugs. The Crown submitted that the strong likelihood was that such a valuable commodity would only be given to a trusted subordinate. 58The last part of the Crown case was its reliance upon the behaviour of the applicant when the AFP sought to arrest him, in particular his attempt to escape as indicating a consciousness of guilt. 59It was the applicant's case that the Crown had to prove beyond reasonable doubt that he had the intention to possess a border controlled drug, or had knowledge that the substance he was attempting to possess was a border controlled drug. It was the applicant's case that there was no evidence that he had that state of mind or knowledge. It was his case that while there might have been a basis for inferring that he knew that there was some illegality involved in what he was doing, the jury could not be satisfied by that evidence that he believed or was aware that what he was attempting to possess was a border controlled drug. The applicant argued that for him to be convicted, the Crown had to prove beyond reasonable doubt that he had that specific belief or awareness. Ground 1 - There was a miscarriage of justice by reason of: (a) The Crown witness, Ms Xiao Fang Chen (Ms Chen), giving evidence (expressly or impliedly) that she was accredited by a National Accreditation Authority for Translators and Interpreters Ltd (NAATI) to interpret from the Chinese language to the English language when she was not so accredited. (b) The failure by the Crown to disclose to the accused that Ms Chen was not accredited by NAATI to interpret from the Chinese language to the English language; and (c) New evidence, which is also fresh evidence, namely that Ms Chen was not accredited by NAATI to interpret from the Chinese language to the English language. 60The new evidence upon which the applicant sought to rely is an affidavit from Mr Foote, who is the Manager, Accreditation in the national office in NAATI, which is the national standards and accreditation body for translators and interpreters in Australia. In that affidavit, Mr Foote stated: "4 Ms Xiao Chen NAATI number 67433 holds the following NAATI accreditation: Professional Translator English into Chinese. This accreditation was awarded 2nd February 2009. 5 Ms Chen does not hold and never has held any NAATI accreditation for interpreting Mandarin into English or English into Mandarin (note: NAATI refers to the spoken language as Mandarin but the written form of Mandarin as Chinese) or any accreditation for translation Chinese into English. 6 In addition Ms Chen holds one other NAATI credential, this is: Recognised Interpreter Fuzhou/English. This recognition was awarded 26 February 2009." 61By way of further background to this ground of appeal, in answer to a request from the solicitors for the applicant dated 28 May 2012, the Commonwealth Director of Public Prosecutions replied as follows: "1. To the best of my knowledge, no staff member of this Office was aware before receiving your email of 28 May 2012 that Ms Chen was not NAATI accredited to interpret from Mandarin to English; ... With Ms Chen's assistance, the AFP Case Officer, Federal Agent Thwaites, drafted Ms Chen's statements, and she signed them. At no time did Ms Chen inform FA Thwaites that she was not NAATI qualified to interpret from Mandarin to English. Paragraph 3 of Ms Chen's statement states the following: "I am currently self-employed as a translator. I translate Mandarin and Fuzhou dialect into the English language and the English language into Mandarin and Fuzhou dialect. I am recognised national authority accreditation for the translator and interpreter (NAATI) translator between the English language and Mandarin/Fuzhou dialect. My NAATI number 67433." This is the only information which was provided to the Commonwealth Director of Public Prosecutions in relation to Ms Chen's qualifications before Ms Chen undertook translations in this matter and before she gave evidence at the trial." 62The applicant submitted that the evidence given by Ms Chen would have misled the jury into believing that she was NAATI accredited to interpret from the Mandarin language when she was not so accredited. He submitted that it was only in May 2012, after the jury had returned its verdict that his solicitors learned that Ms Chen did not hold such NAATI accreditation. He submitted that this was important in the trial because there was a dispute between Ms Chen and Mr Au, an expert interpreter called by the applicant, as to what was said in the Kennards storage facility when the foil packages were being removed from the doors. 63The applicant submitted that the Crown had placed emphasis on Ms Chen's interpretations of the recorded conversations which took place on 30 October 2010 in the storage unit at Kennards. Her interpretations included information which was not included in the transcripts prepared by other interpreters (the Crown had retained two other interpreters, as well as Ms Chen). He submitted that the Crown placed great weight on the interpretation of Ms Chen because of all of the interpreters she had spent the most time listening and re-listening to the conversations. Her interpretations were set out in Exhibits 40 and 41. 64The applicant noted that as part of his evidence Mr Au prepared a document which indicated points of discrepancy between his interpretation and that of Ms Chen. That document identified 15 main discrepancies (Exhibit G in the trial). 65In submissions, the applicant emphasised "discrepancy seven" in Exhibit G. In Exhibit 41 Ms Chen's interpretation was: "What to say to him/her what it is/they are ... (walking in). Ha (interjection requiring answer)? (Amy follows him). Ma you, you come inside." In Exhibit G Mr Au recorded his interpretation as follows: "Does your child (son) know what's inside? (moving things) Ha! Things are put like that ... so you go inside." (p1.10 of Exhibit G) It was common ground that this conversation between Mrs Ma and the applicant was whispered. 66The applicant submitted that the significance of the discrepancy was that on the Crown's interpretation, the applicant was asking Mrs Ma what he should tell her son was inside the doors. On the Crown case the reason he was asking that question was because he knew that the drugs were inside the doors. The applicant submitted that Mr Au's interpretation did not allow that inference to be drawn or at the very least, his interpretation left open the reasonable possibility that the applicant was just being curious. 67On the same topic, the applicant relied upon what he submitted to be another important discrepancy between the interpretations of Ms Chen and Mr Au. Shortly after the above conversation, Ms Chen interpreted the following: "15:03:49 (Amy walks to the doorway) Lau: (Ind) that ... (ind) ... Ask him/her to come and move. Amy: (Ind) Come and help you. (Walking inside and talking to Lau in a whisper). These are used for filming (Ind)(Ind). Lau: (Ind) What to say to him/her what it is (following Amy who was walking out). Amy: (stopping walking and whispering) That's for hospital. Soda powder. Lau: Let him/her help. I will do it quicker. Amy: What? Lau: If he helps, the job will be done earlier. I one person Amy doesn't matter let him in and help. Amy: (Ind)." [The notation "ind" is used to indicate a word which is indecipherable.] 68The applicant submitted that the interpretation of Mr Au of the same conversation was significantly different: "Lau: Slow down a bit ... come on in. Amy: Let me help you (ind) ... for filming. Lau: What did he/she say these things are? Amy: Hospital sourced materials. Lau: Hospital source materials? Amy: Soda powder. Lau: Help me be a bit faster, be a bit faster. Amy: What? Lau: Help me be a bit faster in this way, it's a bit faster just me alone who is doing ..." 69The applicant submitted that these discrepancies in interpretation were important because on the Crown's case the recorded conversation showed that he knew that what he was doing was highly illegal and that he knew that what he was handling was an illegally imported drug because of the whispering and because of the secrecy, particularly in suggesting to Mrs Ma's son that the content of the foil bags was soda powder sourced from a hospital. The applicant submitted that because of the importance of this evidence to the Crown case and because the jury had been misled as to Ms Chen's qualifications, a miscarriage of justice had occurred. Consideration of Ground 1 70There are a number of difficulties for the applicant in relation to this ground of appeal. What needs to be understood is for persons engaged in the interpretation of languages, both oral and written, the words "interpretation" and "translation" are terms of art. It is apparent even after the trial that some of the legal advisers of the applicant and the Crown did not appreciate this distinction. "Interpretation" refers to interpreting oral communications from one language to another. "Translation" refers to carrying out the same process in relation to the written word. When that distinction is understood, it can be seen that there was nothing misleading in what Ms Chen said in her statement and nothing misleading in her evidence. On the contrary, she was careful to distinguish between "interpretation" and "translation" but either this was not understood by counsel for the applicant or if it was understood, he did not regard it as important. 71In cross-examination the evidence of Ms Chen was: "Q. You started working as, am I correct in saying, an interpreter from April 2008 or a translator? A. Interpreter and translator. Q. You're NAATI accredited for translation, that's correct? A. Yes. Q. But not for interpretation? A. No. Q. But you've been able to work as an interpreter since April 2008? A. Yes. Q. Is that in Mandarin in Fuchou or just Mandarin? A. In both Mandarin and Fuchou. Q. Is it the case to become accredited you would have to do an 18 month course? A. Sorry? Q. Is it the case that to become accredited as an interpreter, you have to do an 18 month course? A. Yes. Q. You haven't done that course I take it? A. I did that course. Q. You have done the course? A. Yeah. Q. So are you accredited or are you recognised? A. I am recognised. Q. So although you have done the course, you are not yet accredited. Is that what you're saying? A. Yes. Q. When did you finish the course? A. In 2008. Q. 2008? A. Yeah. Q. How long did the course take? A. One year. Q. One year? A. Yeah. Q. It doesn't take 18 months? A. No. Q. So you started the course in January 2008 did you? A. Yes. Q. You've applied to do a PhD, you're not a PhD student? A. No. Q. Is it a PhD in - I think you said something to do with socio economic conditions in China. Is that correct? A. Yeah, it is socio economic. Q. But not to do with translation? A. No. Q. Not to do with interpretation? A. No." (T.648.31 - 649.47) 72When those questions are contrasted with those of the Crown in chief at T.612-613 it seems clear that the Crown did not understand the distinction between "interpretation" and "translation". As the above evidence demonstrates, counsel for the applicant at trial did appreciate the distinction. That being so, the inference is that counsel for the applicant at trial did not regard it as a matter of importance that Ms Chen was not NAATI accredited to "interpret" Mandarin into English. In any event, he did not pursue the issue. 73If I am incorrect in my reading of that evidence, the principal difficulty for the applicant in establishing that there has been a miscarriage of justice because the jury may have misunderstood Ms Chen's qualifications, is that very little turned on the difference between her interpretation of what was said in the Kennards storage facility and that of Mr Au. 74In its written submissions, the Crown helpfully set out a schedule of the 15 "discrepancies" identified by Mr Lau. In relation to those "discrepancies", the Crown's document set out the interpretation of Ms Chen and the other two interpreters relied upon by the Crown. The document also set out the context in which the words were apparently used and the evidence given by both Ms Chen and Mr Au relating to the "discrepancies". What emerges from that analysis is that the "discrepancies" were of a minor kind and that the evidence itself related to issues which were at best marginal in the trial. 75By reference to the "discrepancies" specifically identified to by the applicant at [67] - [68] above, put at its highest the Crown case was that the applicant and Mrs Ma were whispering because they did not wish her son to hear what they were saying. The applicant wanted help in disassembling the doors but if the son helped, some explanation would have to be given to the son about what was in the silver foil packages. That inference which the Crown sought to draw is just as open from the interpretation of Mr Au, (particularly when he was cross-examined) as it is from the interpretation of Ms Chen. 76The real issue in the cross-examination of Ms Chen and Mr Au was not one relating to accreditation but to explain how it was that Ms Chen in Exhibit 41 was able to include more information about what was said between the applicant and Mrs Ma than she had in her earlier transcripts and more than Mr Au and the other interpreters had been able to set out. The explanation given by Ms Chen which was not challenged, was that she was provided with very high quality earphones by the AFP and that she found that when she listened to the audio from a single audio device, rather than both together, she was better able to distinguish the words that were said. Mr Au in his evidence confirmed that this was so, particularly when he was provided with better quality equipment by the Crown with which to listen to the conversations. It is not without significance that under cross-examination Mr Au moved more closely to the interpretation given by Ms Chen. 77For completeness it should also be noted that NAATI accreditation is not an essential qualification before expert evidence can be given as to interpreting from one language to another. Section 79 of the Evidence Act 1995 provides that expert evidence can be given by an interpreter if that person has specialised knowledge based on that person's training, study or experience. In this case it was common ground that Ms Chen had listened to the conversations for much longer than any of the other interpreters and that she had access to very good equipment with a playback facility. The difficulty faced by all interpreters, of course, was that because of the whispering, much of what was said was simply indecipherable. 78The final point to be made is that apart from the fact that the differences in interpretation between Ms Chen and Mr Au were relatively minor, they can be explained by the superior equipment available to Ms Chen for most of her work and because she spent considerably longer listening to the conversations than did any of the other interpreters. It is also important when one looks at the context in which the discrepancies arose, that the interpretation of Ms Chen fits better into that context than does that of Mr Au. This is demonstrated most clearly from the useful schedule prepared by the Crown to which I have referred. 79Given the cross-examination of Ms Chen by counsel for the applicant, which I have set out above, it cannot be said that the information in the affidavit of Mr Foote is "fresh" evidence. It was clearly available at trial, had the parties wished to do something with it. If I am wrong in that conclusion, and there was a real possibility that the jury were misled as to her NAATI accreditation, the point goes nowhere. In the context of over four and a half hours of listening device recordings, the differences in interpretation between Mr Au and Ms Chen were relatively minor and to the extent that there were differences, they related to issues which were at best marginal in the proceedings. Moreover, there was no basis for the assertion that the Crown deliberately sought to mislead either the defence at trial or the jury as to the accreditation of Ms Chen. 80It follows that even if the jury misunderstood the extent of Ms Chen's accreditation by NAATI, no miscarriage of justice occurred. Ground 2 - The verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. Particulars The jury should not have been satisfied beyond reasonable doubt that the applicant believed or was aware that what he was attempting to possess was a border controlled drug. 81The applicant submitted that the evidence may have been able to satisfy the jury beyond reasonable doubt that during the unpacking at Kennards he thought there must have been some illegality involved in what he was doing, but the jury should not have been so satisfied that he believed or was aware that what he was attempting to possess was a border controlled drug. The applicant submitted that this second element of the charge required specific proof and that having regard to the evidence, there was no such specific proof and therefore the verdict could not be supported. The applicant submitted that the evidence never rose above proof of the applicant being involved in some illegality when unpacking at Kennards and that he had agreed to carry out that work for Ah Ming but the evidence was insufficient to enable the jury to be satisfied beyond reasonable doubt that he believed or was aware that what he was attempting to possess was a border controlled drug. In that regard, the applicant relied upon M v R [1994] HCA 63; 181 CLR 487 and MFA v R [2002] HCA 53; 213 CLR 606. 82The applicant submitted that this Court could not be satisfied beyond reasonable doubt that he came to Australia to unpack drugs and deliver them at some arranged destination. He submitted that the Court could only be satisfied beyond reasonable that from 19 October when he spoke to Ah Ming that he knew that he would be involved in some illegality. The applicant submitted that that was sufficient to explain the notebook entry "901-910" in that it went no further than indicating that he had been directed to open the dummy doors and remove packages. The applicant submitted that it was a significantly greater step to infer from that notebook entry that he was aware that the doors contained border controlled drugs. The applicant submitted that nowhere in the trial was there evidence to establish that fundamental ingredient of the offence. Consideration 83As was stated by the plurality (Gleeson CJ, Hayne and Callinan JJ) in MFA: "23 ... None of this relieved the Court of Criminal Appeal of its responsibility in scrutinising the evidence, and making its own assessment of the reasonableness of the guilty verdicts. However, in making that assessment, the Court would properly have been conscious of the fact that there were aspects of the case that would not be reflected adequately in the written record. ... 25 Where it is argued that the verdict of a jury is unreasonable, or cannot be supported, having regard to the evidence, the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment in M v The Queen. That test was accepted and applied by this Court in Jones v The Queen. In M, it was pointed out[4] that it was once common for expressions such as "unsafe or unsatisfactory", or "unjust or unsafe", or "dangerous or unsafe" to be used in place of the language of s 6(1) of the Criminal Appeal Act, and corresponding statutes in other jurisdictions, and that such expressions might cover different parts of the statutory provision, referring, for example, either to a verdict that is unreasonable, or cannot be supported, having regard to the evidence, or to a miscarriage of justice because an accused has not had a fair trial according to law. Speaking of cases where what is in question is whether a verdict is unreasonable, or cannot be supported having regard to the evidence, the joint judgment said: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."" These principles were restated by the plurality (French CJ, Gummow and Kiefel JJ) in SKA v R [2011] HCA 13; 243 CLR. 84The Crown case to establish the fault element, namely that the applicant knew or believed that the substance hidden inside the dummy doors was an illicit drug, was a circumstantial one. The Crown submitted that each circumstance operated as the strand of a rope to establish beyond reasonable doubt that fault element. 85The circumstantial evidence from which the jury were asked to infer the applicant's fault element included: (a) The removal by the applicant of the silver foil packages from the dummy doors - including the skill and speed he demonstrated - which the Crown said established that he knew exactly what he was looking for and he knew precisely how to remove it. (b) The packing by the applicant of the silver foil packages into bags. (c) Carrying packed bags from the storage unit to Mrs Ma's car. (d) Loading the packed bags into Mrs Ma's car. (e) Travelling in Mrs Ma's car from Kennards at Guildford with packages inside bags in the boot and on the rear seat. (f) Purchasing two new suitcases to transport the foil packages. (g) Repacking the packages into the new suitcases. (h) Driving Mrs Ma's car with the packages inside bags in the boot and on the rear seat. (i) Inferences arising from the nature, method and circumstances of the concealment. (j) Inferences arising from the origin of the shipment. (k) Inferences arising from the value of the heroin. (l) Inferences arising from the applicant travelling to Australia, including the giving of a false address on his Incoming Passenger Card. (m) Inferences arising from the applicant giving a false address on a mobile telephone service to which he subscribed when he arrived in Australia. (n) Inferences arising from the applicant subscribing to a mobile telephone service in a false name with a false address and thereafter using that phone to contact Mrs Ma and the person he called Ah Ming. (o) Inferences arising from his use of public telephones to call Hong Kong numbers (despite the fact that he had four mobile telephones on him when arrested). (p) The conversations between Mrs Ma, her son and the applicant recorded on the listening devices and optical device on 30 October 2010. (q) Inferences arising from the applicant's notebook entry "901 - 910" which corresponded with the markings on the cardboard boxes containing the concealments. (r) The answers given by the applicant during his recorded interview with the AFP, including that he was offered "a few tens of thousands" of Hong Kong dollars (equivalent to a few thousand Australian dollars) to perform the task of removing and delivering the packages, which in the context that the applicant's monthly income from employment in Hong Kong of $HK3,000 - $HK4,000 was equivalent to approximately six to seven months of his normal income. (s) Fleeing from the police when they tried to arrest him. 86Of those circumstances there are some which provide very powerful evidence in support of the fault element in the Crown case. Apart from the fact that the applicant had in his notebook "901 - 910" the way in which he went about opening the first of the doors was strongly suggestive that he knew exactly how the foil packages had been packed and what he needed to do in order to gain access to them. He immediately started to dismantle the door with the use of the screwdriver and undoing the screws. There was no hesitation in his approach to the first door. He did not seek to remove the cardboard with which the door was encased. Rather, he sliced open the cardboard on the narrow side and then through that narrowest of openings, prised open the door and placed his arm up to his elbow inside the cavity which he had created in order to withdraw the concealed foil packages. 87Another powerful piece of evidence were the photographs of how the foil packages were placed in the doors. The placement of the packages was careful and orderly within each of the dummy doors. In this day and age the overwhelming inference which would be drawn by a reasonable person observing photographs of the concealment of the foil packages is that they contained illicit drugs. This is particularly so when the concealment was of such a kind and the doors had come from overseas. This is one of those cases where the photographs themselves, without any explanation, is the most powerful evidence of the likely content of the foil packages. 88Another important aspect of the circumstantial evidence is the apparent trust placed by Ah Ming in the applicant. We know that the heroin had a potential value in excess of $200 million. According to the applicant, he and Ah Ming had met only once and were at best acquaintances, yet the jury was asked to believe that the applicant whom Ah Ming barely knew was entrusted with the responsibility of delivering the drugs to a location which only he would know and the whereabouts of which he would then communicate to Ah Ming. All this was to be done in exchange for a relatively modest payment. This when taken with the photographs of the foil packages and the speed and skill with which the applicant accessed the dummy doors makes his explanation in his ERISP incredible in the true sense of that word. That is the conclusion which the jury clearly reached, as do I. These matters when taken with the other circumstantial strands of evidence produced a very strong Crown case more than sufficient to establish the fault element of the charge, so that it was open to the jury to be satisfied beyond reasonable doubt on that issue. 89This ground of appeal has not been made out. Ground 3 (a) The judgment of the court at trial should be set aside on the ground of a wrong decision on a question of law. (b) Alternatively there was a miscarriage of justice. Particulars of this Ground 3 The trial judge erred in ruling that evidence relied upon by the Crown as flight was admissible. (i) To prove that the applicant believed or was aware that what he had attempted to possess was a border controlled drug and; (ii) As evidence of consciousness of guilt. The trial judge also erred in failing to refuse to admit the evidence relied upon by the Crown as flight. 90I have already set out in general terms the evidence concerning the apprehension of the applicant by members of the AFP at [27] - [29] hereof. 91The applicant submitted that when the evidence of the particular Federal Agents involved in his apprehension is closely examined, it disclosed a number of contradictions. He referred to the evidence as to the lane in which his car came to a halt and to the evidence as to which of the unmarked cars flashed lights and activated sirens. Although this was not expressly articulated, I infer that the purpose of these submissions was to demonstrate that it was not clear to the applicant that the persons who had stopped him and prevented further movement by his car were police officers. If this were so, it is consistent with the applicant's explanation in his ERISP that he thought they were "bad guys chasing me". He "did not know what was happening" so he just ran. 92The applicant submitted that the evidence of flight, if established, was not capable of being seen as indicating a consciousness of guilt of the specific offence charged, i.e. it was not capable of being seen as indicating that the applicant believed or was aware that what he had attempted to possess was a border controlled drug (R v Cook [2004] NSWCCA 52 at [22], [23] and [25] (Simpson J with whom Ipp JA and Adams J agreed). He submitted that even if the evidence of flight were only to be considered as part of the accumulation of circumstantial evidence it was not capable of contributing to the jury being satisfied beyond reasonable doubt that he believed or was aware that what he was attempting to possess was a border controlled drug. 93The applicant submitted that put at its highest, the "flight" was evidence that he wanted to escape from the police and although it may have been evidence that he thought that there must have been some illegality involved in what he was doing, such evidence did not convert that belief into an awareness that what he was attempting to possess was a border controlled drug. The applicant submitted that this was consistent with what he had said in his ERISP that he thought he might have been involved in tax evasion or that it might have been gold in the packages. 94The applicant also relied upon ss 135 and 137 of the Evidence Act 1995. The applicant submitted that the evidence of flight should have been excluded, pursuant to s137 of the Evidence Act, because it had a tendency to improperly influence the jury to: (a) Conclude that because the applicant was running away from the police, he must be guilty; and (b) Come to that conclusion without considering whether that evidence was probative to the applicant believing or being aware that what he had attempted to possess was a border controlled drug. 95The applicant submitted that the evidence of flight should not have been admitted because it was unfairly prejudicial to him. He submitted that the unfairness substantially outweighed any probative value of the evidence and there was the danger of unfair prejudice which has already been referred to. Consideration of Ground 3 96It was well open to the jury to reject the applicant's evidence that he thought the policemen who stopped him might have been "bad persons" and that he did not know what was happening. This is clear from the evidence of the police officers which was not challenged by the applicant. Five unmarked AFP police cars followed him on 30 October 2010. He was the driver and sole occupant of the vehicle, which was carrying bags which contained 134 silver foil packages. He was observed driving erratically, executing a number of U-turns in quick succession and stopping his car on the side of the road. The evidence was that driving in that manner was an indicator of a person engaging in counter-surveillance manoeuvres. 97Quite fortuitously, before the applicant was forced to stop, a marked NSW Police Hyundai van with its rooftop flashing lights activated, drove directly behind the applicant's vehicle. The overwhelming inference is that he knew that this was a police vehicle. This is particularly so when one has regard to the evidence of Mr Au that in Hong Kong police vehicles, as well as having markings in the Chinese language, also have the word "police" prominently displayed. 98At the time when the applicant's vehicle was forced to stop, Agent Everingham's vehicle was parallel to it at which time Agent Everingham held up his police identification and said "Please switch off your vehicle" and observed the applicant looking at him. One of the AFP vehicles had its police siren activated at that time and two had their flashing lights activated. Agent Warne put on his police cap and yelled out "Stop police". Agent Griffiths also yelled out "Stop police". 99The applicant's reaction was to reverse his car at low speed into the front of one of the AFP vehicles which he then left in reverse gear with the motor running and still in contact with the AFP vehicle. At the time he did this, the marked NSW Police van was 6 - 10 metres away from his car towards its rear on the driver's side. At the time when the applicant got out of his car, uniformed NSW Police were 8 - 10 metres away and in the process of getting out of their van. The applicant was pursued on foot by the AFP for 150 - 200 metres with agents yelling "Stop, police" until he was stopped by two Brazilian tourists. 100The applicant had to be brought forcibly to the ground, after which time he continued to resist struggling violently while the AFP officers tried to place him in handcuffs. They observed that the applicant was trying to dial his mobile telephone at the time. During this struggle, the officers were constantly telling the applicant that they were police and Agent Warne was still wearing his police cap and police accoutrement belt. It was only after he had been forcibly handcuffed, that the applicant ceased struggling. 101The evidence to the effect that the applicant must have known that the persons who had stopped his vehicle and were seeking to apprehend him were police officers was overwhelming. It follows that the jury were entitled to make such a finding. 102The statement of principle by Simpson J in R v Cook to which the applicant referred is at [50]: "50 Where evidence of flight is relied upon as evidence of a consciousness of guilt, the principles of law applicable to directions which must be given to the jury are, in my view, identical to those which govern the directions to be given to a jury where lies are relied upon as such evidence. Those principles are stated in Edwards, Zoneff and Hyde. The conventional direction in relation to lies drawn from those, and other cases, requires a degree of adaptation in order to be accommodated to evidence of flight relied upon by the Crown for the same purpose. In particular, it is necessary, in my opinion, to draw attention to the circumstance that an accused person may behave in a way suggestive of a recognition of guilt for reasons other than such recognition of guilt - for example, fear of being unjustly accused. It is also necessary to point out to the jury that the consciousness must be a consciousness of guilt of the specific offence charged, and not, for example, of some other offence or some other discreditable conduct. The flight (or lie) may only be used as evidence of a consciousness of guilt of the offence charged where the jury is satisfied that it points unequivocally to consciousness of guilt of that offence and not some other offence or discreditable conduct." 103That statement of principle was adopted and qualified in Ristevski v R [2007] NSWCCA 87 where McClellan CJ at CL (with whom Bell and Howie JJ agreed) said: "33 Only one qualification may be necessary to her Honour's remarks. Her Honour speaks of the jury being satisfied that the lie or flight points unequivocally to consciousness of guilt of the relevant offence. In Edwards v The Queen 178 CLR 193 Deane, Dawson and Gaudron JJ emphasized that unless the alleged lie is the only evidence against an accused, or an indispensable link in the chain, it does not have to be proved beyond reasonable doubt (p 210). 34 In the present case it was plain that the appellant sought to escape in order to avoid apprehension for an offence relating to the drugs he had discarded. He said that he did so because he might be wrongly accused of possessing the drugs. His counsel reminded the jury of this explanation and her Honour, in summing up, also reminded them of it. No other explanation was offered. It follows that there was no reason for the trial judge to remind the jury that persons may have reasons to flee other than from a consciousness of guilt. The issue was properly placed before the jury." 104The trial judge correctly applied those principles. She identified the five conditions which must be fulfilled to establish that flight is capable of amounting to consciousness of guilt. (i) The flight must be deliberate. (ii) It must relate to a material issue. (iii) The motivation for flight is a realisation of guilt. (iv) (Where relevant) the evidence of flight must be from an independent witness. (v) The flight must be capable of being seen as an indication of consciousness of guilt of the specific offence with which the accused is charged. 105In her interlocutory judgment in relation to the admission of this evidence, the trial judge correctly held that the evidence of flight was capable of amounting to consciousness of guilt. The only conduct to which the evidence of flight could relate was the applicant's conduct in accessing the foil packages from the dummy doors and transporting them to a particular destination. As was conceded by the applicant, that conduct was capable of being evidence that at the very least he thought that there was some illegality in what he was doing. It was a matter for the jury, applying the principles set out by the trial judge, as to whether they were satisfied that the particular illegal conduct involved an attempt to possess a border controlled drug. That was the issue to which Ground 2 related. Unless the jury were satisfied beyond reasonable doubt on that question, then the evidence of flight of itself was not capable of establishing it. If the jury were so satisfied, then the evidence of flight was clearly corroborative. 106The task of determining admissibility is predictive in its nature, requiring an assessment of whether the evidence is capable of establishing a particular issue. It involves an assessment of the potential value of the evidence when the mosaic of evidence is complete. It is no part of that assessment process to determine what the jury will make of that item of evidence on completion of the evidence in the trial. In applying s137 of the Evidence Act, the courts assess the capacity of the evidence, if relevant, to support a particular finding by balancing the probative value and unfair prejudice of the particular evidence proffered by the prosecution. The section does not require assessment of the credibility, reliability or weight of such evidence, those being matters left to the jury if the evidence be admitted (R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [60], [64], [74]; DJS v R; NS v R [2009] NSWCCA at [8], [11], [55] - [56], [135] and [136]; R v XY [2013] NSWCCA 121; 84 NSWLR 363 at [2], [42], [86] - [87], [171], [175]; R v Burton [2013] NSWCCA 335 at [161] - [171]). 107On the Crown case, which was circumstantial in relation to the fault element, the trial judge held that the evidence had substantial probative value and that this value was not outweighed by any danger of unfair prejudice. The question of whether in fact the applicant's flight was evidence establishing consciousness of guilt and a circumstance to be taken into account in determining proof of the fault element were questions of fact to be determined by a properly instructed jury. The trial judge's direction to the jury on evidence of flight and the use to which the jury could put that evidence was correct. Significantly, no objection was taken by counsel then appearing for the applicant concerning the content or correctness of that direction. 108This ground of appeal has not been made out. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE The difference between the sentence imposed on the applicant and the sentence imposed on the co-accused Ying Ma is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance in the mind of an objective observer that justice has not been done. 109The applicant submitted that the disparity in the sentences imposed on him and Mrs Ma was so great that from the point of view of an objective observer, he was entitled to have a legitimate sense of grievance. In order to understand the competing submissions of the parties, it is necessary to set out the findings of the trial judge when sentencing Mrs Ma and the applicant. 110Mrs Ma was sentenced to a term of imprisonment comprising a non-parole period of 4 years with a balance of term of 4 years, commencing 20 October 2010. The applicant was sentenced to a term of imprisonment comprising a non-parole period of 7 years with a balance of term of 4 years, also commencing 20 October 2010. 111In relation to Mrs Ma, the trial judge made the following findings of fact which were relevant to the objective seriousness of her offending: (a) At the direction of Mrs Ma, the container was delivered to the Kennards warehouse at Guildford. She arranged for two men to unload the container. One of those men (Mr Yang) noticed that 10 of the doors were damaged. When he inspected one of them, he found and opened one of the substituted parcels. He then telephoned Mrs Ma and said: "He did not know what the stuff was, but expressed some concern at what it might be". (b) Mrs Ma then spoke to a person in Malaysia regarding the doors and at 8.03am on 30 October 2010 received a phone call from a Mr Wang who said: "Listen to me, he will offer you $500,000 first, ah your money there" to which Mrs Ma responded "Mm is that so". (c) Mrs Ma subscribed to a new telephone service in a false name and thereafter used that phone to speak to the applicant and Mr Wang. (d) At about 2.50pm on 30 October Mrs Ma and Bing Xiao went to the warehouse. Mrs Ma carried with her tools and gloves. About half the substituted parcels were unpacked and placed into bags which Mrs Ma provided. (e) Mrs Ma, the applicant and Bing Xiao then carried the bags to Mrs Ma's vehicle and placed them in the boot. They drove to Mrs Ma's house in Campsie. (f) The applicant was arrested while driving that car from Mrs Ma's home. Found inside the car were three suitcases containing 134 of the substituted packages. (g) Her Honour noted "The Crown accepts that Mrs Ma was initially unaware of the concealment and that up until Mr Yang reported his discovery to her, which led to her being offered a substantial payment to turn a blind eye to it, was being used as an innocent dupe by those bringing drugs into Australia". (h) Although her Honour accepted that Mrs Ma's conversations with Mr Wang and Mr Yang on 29 October "Would have alerted her to the likelihood the shipment contained border controlled drugs" she held "I am not satisfied beyond a reasonable doubt that she was a knowing participant in the enterprise before she had the conversation with Mr Wang at 8.30am on 30 October in which she was offered $500,000 to facilitate the movement of the packages from the doors into Mr Lau's custody". (i) Her Honour found: "[Mrs Ma] thereafter spent the afternoon doing a number of things to facilitate the movement of the packages into Mr Lau's custody and I accept intended to facilitate the movement of the remaining 96 packages into Mr Lau's custody the following day". (j) Her Honour found that: "Although it must be said that after she was offered the money, she rather enthusiastically embraced her task, I do take into account that the situation was thrust upon her and that as a result she found herself in a difficult position". (k) She must have known that the quantity of heroin was significant because of the discussions she had with Yang and Wang and because she was going to be paid $500,000 for what was to be a relatively minor involvement with the drugs. (l) Her Honour was not satisfied that Mrs Ma knew the magnitude of the heroin, given that both her car and the containers she provided were not adequate to move the entire shipment. (m) It was an aggravating feature that "She prevailed upon her son to assist her to unload the packages and transport them to her home". (n) Her Honour found that Mrs Ma's "Offence is towards the lower end of objective seriousness for offences of this kind although the magnitude of the shipment could not be overlooked". 112It was common ground that Mrs Ma initially provided the bags which were to be used to transport the packages from Kennards, she provided the tools and the gloves, all of which the Crown submitted were necessary to access the drugs. She controlled and kept control of the key to unit 38 at the Kennards complex. Mrs Ma picked the applicant up from near Campsie railway station and took him to unit 38 at Kennards. She provided the car that the three of them used. It can be inferred that she would have been involved in the loading of the packages at her home into the two new bags which had been purchased by the applicant and in the placing of all the bags into her car. She allowed the applicant to use the car to drive away with the packages packed in the bags. 113Her Honour made the following findings as to the subjective circumstances of Mrs Ma. She was 57 years old, compared to 34 for the applicant, had no criminal record and was having significant difficulty in coping with custody and had a heart condition. Her Honour accepted that Mrs Ma has, and would continue to suffer more than other prisoners while in custody, as a result of her suffering extremely severe depression, anxiety and stress. Her Honour found that because Mrs Ma's skills were insufficient to cope and survive in the prison system over a long period of time, she would require a great deal of support from Chinese speaking professionals. 114Her Honour accepted that Mrs Ma facilitated the course of justice by making extensive written admissions which narrowed the issues which had to be litigated. 115The trial judge made the following findings in relation to the objective seriousness of the offending of the applicant: (a) Her Honour was not satisfied beyond reasonable doubt that he came to Australia to unpack the drugs and deliver them at some pre-arranged destination. (b) Her Honour was satisfied that from 19 October 2010 he became involved in the enterprise to the extent that he agreed at that time to do a job for Ah Ming which he knew involved some illegality as it was on 19 October that he changed his return flight and shortly after bought a second phone which he thereafter used to speak to Ah Ming and Mrs Ma, having first registered it in a false name using a false date of birth. (c) Her Honour found that the entry in the notebook of "901 to 910" meant that "at some time prior to Mr Lau commencing to open the dummy doors to remove the packages he knew that those doors contained border controlled drugs". (d) Her Honour found that the amount he was to be paid "which is the equivalent of about $AU2,500 even accepting that it was 6 or 7 times Mr Lau's monthly wage, certainly does not suggest that at the time he agreed to do the job he knew that what he was to do involved a substantial quantity of border controlled drugs". (e) Her Honour stated that she proposed to sentence the applicant on the basis that "For reasons of greed, he agreed to do the job that he knew would involve some illegality, that 11 days later he discovered the job involved a substantial quantity of a border controlled drug and knowing that, continued to be involved in opening the dummy doors, removing the packages, transporting 134 of those packages to Mrs Ma's house intending to return the following day to get the balance and then commencing to transport them to a place he had been told on 30 October to take them, intending to leave them there." Her Honour found: "Although his was a crucial role it was a role at a low level in the enterprise". 116The trial judge made the following findings in relation to the applicant's subjective case. That he had a prior conviction in Hong Kong for conspiracy to defraud and had served a term of imprisonment for that offence. Because of this she found that he was not entitled to the leniency that might otherwise be afforded to a first time offender. 117The applicant left school in year 9, he had a special relationship with his 88 year old grandmother who looked after him a lot when he was a child. His family could not afford to come to Australia to support him. Despite this, his father, brother and sister-in-law provided letters to the court referring to his kindness towards his parents and that he was the main supporter of his family financially. 118Her Honour accepted that the applicant had something of an intellectual disability so that general deterrence was not of quite the same importance in the sentencing exercise as it otherwise would be, nevertheless, it still had some importance. She accepted that the applicant had reasonable prospects of rehabilitation. The applicant had a reactive anxiety and depressive condition which was mainly associated with his impending incarceration. 119The applicant submitted that although the sentencing judge had found that his role was a crucial one, it was also the case that the role of Mrs Ma was crucial. Her agreement to the removal of the drugs from the container was essential if the importation was to be successful. The applicant noted that although her Honour made a favourable finding for Mrs Ma in that she found herself in a difficult position because the situation was thrust upon her, her Honour also found that after she had been offered the money, Mrs Ma enthusiastically embraced her task. In that regard, the applicant submitted that the amount of $500,000 which Mrs Ma was to be paid, was indicative of how important those who had arranged the importation, regarded her role. 120The applicant submitted that a comparison of the matters which her Honour took into account when assessing the objective seriousness of their offences did not justify the substantially greater sentence which he received. He was going to receive significantly less money, he did not involve anyone else whereas Mrs Ma had involved her son. Mrs Ma knew that the quantity of heroin was significant. It was Mrs Ma who had provided the car and all of the equipment. 121In relation to their subjective cases, the only real difference was that the applicant had a previous conviction, Mrs Ma's coping skills would make her time in gaol more difficult and she had facilitated the course of justice by making written admissions. The applicant submitted that in his favour was his borderline range of intelligence and that he had reasonable prospects of rehabilitation. 122In summary, the applicant submitted that the objective seriousness of the offending by each of them was similar. It was only the subjective circumstances of Mrs Ma which were more favourable to her. The applicant submitted that the difference in the subjective cases was not such as to justify such a significant difference in the sentences imposed. Consideration 123In Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 the plurality (French CJ, Crennan and Kiefel JJ) said: "32 A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error. It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself. Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed. If an appeal is allowed on the ground of disparity, a court of criminal appeal in re-sentencing is not required to achieve identity of punishment. It must have regard to the sentence imposed on the co-offender and give it appropriate weight. In such a case, an appeal to this Court on the question whether a disparity identified in a court of criminal appeal was unjustifiable and called for intervention by that court would also involve review of a qualitative and discretionary judgment. 33 There is a question whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, had there been no disparity, would be regarded as erroneously lenient. In Lowe that question was answered explicitly in the affirmative by Mason J and less explicitly but to like effect by Dawson J, with whom Wilson J agreed. It has also been answered in the affirmative in a number of cases in the Court of Criminal Appeal of New South Wales. On the other hand, as Simpson J correctly pointed out in R v Steele, the existence of a discretion, where unjustified disparity is shown, to reduce a co-offender's sentence to one which is inadequate does not amount to an obligation to do so. Certainly, the discretion of the Court of Criminal Appeal to reduce a sentence to a less than adequate level would not require it to consider reducing the sentence to a level which would be, as Street CJ put it in R v Draper, "an affront to the proper administration of justice." Moreover, if the relevant sentencing legislation, on its proper construction, does not permit an inadequate sentence to be imposed, there can be no discretion on appeal to impose one. Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences." 124With all due respect to the sentencing judge, I am firmly of the view that the sentence imposed on Mrs Ma was manifestly inadequate. As has been submitted by the applicant, the objective seriousness of the offending by him and Mrs Ma was at least equal and there is a respectable argument to the effect that her offending was more serious. Certainly on the evidence available, those in charge of the importation were prepared to pay a substantially greater amount of money to ensure her co-operation than they were in respect of the applicant. On the findings made by her Honour, the applicant played a relatively menial role in physically accessing the heroin and then driving it to a location where it could be collected by others. It is difficult to see how his involvement was any more serious than that of Mrs Ma who, although she came into the transaction at a later point in time, was fully aware of the seriousness of what she was doing and who provided all the equipment, including a car, to facilitate the importation. 125It is true, as was properly conceded by the applicant, that Mrs Ma had a stronger subjective case. It is proper that this consideration be reflected in the sentence. The difference in the subjective cases is not sufficiently great, however, to justify a difference in the non-parole periods of imprisonment whereby the sentence to be served by the applicant is 75 percent greater than that to be served by Mrs Ma. 126In my opinion, the applicant is entitled to have a justifiable sense of grievance insofar as the difference in sentences is concerned. 127That does not end the matter. A complicating factor is that the sentence imposed by her Honour on Mrs Ma was manifestly inadequate but the Crown has not brought an appeal against that sentence. In those circumstances, while it is necessary in order to observe the principle of parity that the applicant's sentence be reduced it should not be reduced to a level that would make it also patently inadequate (Green v The Queen; Quinn v The Queen at [33]). 128Keeping that consideration in mind, I propose that the applicant should be re-sentenced to imprisonment with a non-parole period of 6 years and a balance of term of 3 years. Conclusion 129The orders which I propose are as follows: (i) An extension of time be granted within which the applicant can seek leave to appeal against conviction. (ii) Grant leave to the applicant to appeal against conviction. (iii) Dismiss the appeal against conviction. (iv) In relation to the application for leave to appeal against sentence, grant leave to appeal. (v) Allow the appeal against sentence. (vi) Quash the sentence imposed on the applicant by Flannery DCJ on 10 May 2012. (vii) In lieu thereof the applicant is re-sentenced to a term of imprisonment with a non-parole period of 6 years, commencing 30 October 2010 and expiring 29 October 2016, with a balance of term of 3 years expiring 29 October 2019. 130HARRISON J: I agree with Hoeben CJ at CL. 131McCALLUM J: I agree with Hoeben CJ at CL, for the reasons his Honour has stated. 132As to ground 2, learned senior counsel for the applicant undertook a careful analysis of the cogency of the evidence going to the fault element of the offence. Those submissions have not persuaded me that the jury ought to have entertained a doubt as to that element. Based on my review of the evidence, I have not been persuaded that the verdict should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence. 133I agree with Hoeben CJ at CL as to the sentence appeal and with the orders proposed by his Honour. ********** Amendments 24 September 2014 - Word "corroboration" replaced with "consciousness of guilt" in third line. Amended paragraphs: Par [105] 25 September 2014 - Typographical error in line 3 - "corroboration" replaced with "consciousness of guilt". Amended paragraphs: par [104] 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. Decision last updated: 25 September 2014