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CITE

Unreported Judgment
Appeal Determined (QCA)

R v CL Lam, Truong, Duong and VT Lam[2001] QCA 279McPherson JA and Thomas JA and Chesterman J
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R v CL Lam, Truong, Duong and VT Lam[2001] QCA 279

SUPREME COURT OF QUEENSLAND

CITATION:	R v CL Lam, Truong, Duong and VT Lam [2001] QCA 279
PARTIES:	R v LAM, Chanh Long TRUONG, Steve Mung DUONG, Van Duc LAM, Vinh Tuyen (appellants/applicants)
FILE NO/S:	CA No 255 of 2000 CA No 259 of 2000 CA No 264 of 2000 CA No 266 of 2000 DC Nos 2630 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction and sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	20 July 2001
DELIVERED AT:	Brisbane
HEARING DATE:	10 -11 May 2001
JUDGES:	McPherson and Thomas JJA, Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Each appeal against conviction is dismissed Each application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – FRAUD – where appellants convicted of defrauding the Jupiters Casino by allegedly taking part in a planned scheme involving the corruption of a croupier CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER OF COUNTS – whether the Crown should have charged a separate count for each dishonest bet made by each appellant rather than joining them – where the construction of s 408C (2) (d) and s 568 (3) of the Criminal Code allows joinder of frauds – where this was the correct approach when the charge is in respect of a process of dishonesty which continued over each game session CRIMINAL LAW – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – IDENTIFICATION EVIDENCE – MODES OF PROOF – PRIOR VISUAL IDENTIFICATION – IDENTIFICATION FROM PHOTOGRAPHS – where part of the identification evidence against the appellants included a pre-recorded interview with a primary witness who identified the appellants (who were allocated target numbers) out of a series of photographs – where this procedure did not conform to identification from a line up or photo board – whether pre recorded interview should have been excluded on the basis it unfairly lent weight to the witness’ evidence – where it was rather the necessary means by which the reliability of the witness could be assessed - where the receipt of evidence was not inconsistent with principles in Alexander v The Queen because of the familiarity between the witness and appellants CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE EVIDENCE CIRCUMSTANTIAL - MISDIRECTION AND NON DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – whether directions on identification evidence failed sufficiently to identify matters undermining the reliability of the primary witness’s identification evidence – whether difficulties of cross cultural identification had been adequately identified – where sufficient Domican warnings were given – whether trial judge erred in commenting on taped evidence – whether trial judge erred in directions on circumstantial evidence - whether summing up was unduly favourable to the Crown – where criticisms of summing up and directions did not raise true points of error –– where the summing up was favourable to the Crown but not so as to discern a miscarriage of justice – where strong Crown case EVIDENCE – ADMISSIBILITY AND RELEVANCY – OPINION EVIDENCE – EXPERT OPINION – QUALIFICATIONS OF WITNESS – whether evidence given by an expert witness in the rules and procedures of the card games could be correctly categorised as opinion evidence – where the categories of such evidence are not limited to areas of scholastic studies – where such evidence was properly viewed as an aid to the jury – Butera applied CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON DIRECTION – PRESENTATION OF CROWN CASE – where the Crown Prosecutor was allowed to interpolate Crown allegations during the giving of the expert witnesses’ evidence – whether this added weight to the Crown’s case – where the circumstances of this case called for such a procedure – where no discernible error CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – whether the trial judge erred in treating each appellant on the basis they were part of an overall scheme which netted a considerable sum of money – where the very nature of the criminal activity was that each would benefit from a combined criminal enterprise – whether sentences of 3 years manifestly excessive – whether there is a distinction in defrauding institutions and individuals – where sentence properly reflected the deliberation, planning and the corruption of others Casino Control Act 1982 (Qld), s 65, s 103 Criminal Code s 408C (1), s 408C (2), s 408C (2) (d), s 568 (3), s 568 (4), s 568 (5), s 668F (2) Alexander v The Queen (1981) 145 CLR 395, distinguished Alexandridis [1994] 76 A Crim R 391, considered Butera v Director of Public Prosecutions (Vict) (1987) 164 CLR 180, followed Davies and Cody v The King (1937) 57 CLR 170, distinguished Director of Public Prosecutions v Merriman [1973] AC 584, considered Domican v The Queen [1992] 173 CLR 555, considered Edwards v R (1993) 178 CLR 193, distinguished Jacobson CA No 319 of 1994, 26 October 1994, considered Peacock v The King (1911) 13 CLR 616, considered Pitkin v The Queen (1995) 69 ALJR 612, distinguished R v D [1996] 1 Qd R 363, considered R v De Simoni (1981) 147 CLR 383, considered The Queen v Ching, ex parte A-G CA No 269 of 1992, 21 October 1992, considered Weal v Bottom (1966) 40 ALJR 436, considered
COUNSEL:	C Chowdhury for the appellant/applicant Truong M J Griffin SC, with P J Davis, for the appellant/applicant Duong J McLennan for the appellants/applicants CL Lam and VT Lam M J Byrne QC, with C J Clark, for the respondent
SOLICITORS:	Legal Aid Queensland for the appellants/applicants Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: I agree with the reasons of Thomas JA for dismissing these appeals against conviction as well as the applications for leave to appeal against sentence.

In view of the number of appellants, as well as the issues involved in each appeal, it may be worth mentioning that in the course of the appeal hearing the Court viewed the video tapes that were before the jury at the trial, or extracts from those tapes that were selected by counsel for the appellants and for the Crown. Most of those extracts had already been identified by counsel and viewed by the members of the Court before the appeal hearing took pace. On appeal, we were therefore well placed to ask questions about the way in which the relevant games of baccarat were played at the casino and the better to understand the points that counsel were making on the appeal.

I am left in no doubt that the appellants were rightly convicted and that the sentences were appropriate.

THOMAS JA:
Index
	Paragraph
Issues	[4]
Summary of Evidence	[10]
Identification	[48]
Identification of appellants by Kingston from photographs	[49]
Identification of Truong	[64]
Identification of Duong by Baldry	[70]
Adequacy of directions on identification	[72]
Expert evidence to assist jury	[77]
Crown Prosecutor’s explanations during playing of tapes	[83]
Trial judge commenting on effect of tape	[86]
Directions on circumstantial evidence	[93]
Duong’s departure	[96]
Directions of “ridiculous explanations”	[99]
Summing-up unduly favourable to Crown	[103]
Verdicts unreasonable	[104]
Whether prima facie case against Truong on count 3	[106]
Form of indictment	[108]
Applications for leave to appeal against sentence	[116]
Orders	[132]

Issues

These are appeals against convictions of aggravated fraud and attempted fraud. The indictment contained 26 counts against seven accused persons. After a trial of about six weeks the jury acquitted two (Messrs Ea and Nguyen), and convicted the other five namely, Chanh Long Lam ("C L Lam"), Steve Mung Truong ("Truong"), Van Duc Duong ("Duong"), Vinh Tuyen Lam ("V T Lam") and Chanh Hung Lam. The appellants are the first four mentioned of the five convicted persons.

Each appellant was separately charged as a principal offender under s 7(i)(a) of the Code with dishonestly obtaining certain sums of money from Jupiters Casino. The circumstance of aggravation alleged in 19 of the counts was that the yield to the offender from the dishonesty was of a value of more than $5000. The remaining seven counts were of attempted fraud.

Shortly stated, each appellant is alleged to have obtained money from the casino through placing bets in games of baccarat in which the croupier had been bribed to shuffle the cards in a certain way. This enabled those who knew what was happening to identify the sequence of which a certain group of cards (referred to as a "slug") would emerge, and to bet accordingly.

Multiple grounds of appeal have been raised including allegedly defective identification procedure, wrongful admission of evidence, objections to statements made by the learned trial judge in the course of summing-up, and objections to the summing-up as a whole.

The evidence included extensive video tapes. These were extracted from footage taken by many video cameras installed throughout the casino. Indeed, at material times there were about 400 video cameras so installed. The case for the prosecution included the presentation of composite tapes which showed the actual activities of persons at the relevant gaming tables, and even of the sequence of cards played in the relevant games.

In order to deal with the grounds raised on this appeal it will be necessary to present in some detail the effect of the evidence that was presented. In doing this I acknowledge considerable assistance from the helpful written summaries prepared by Mr Chowdhury (who appeared on behalf of Truong) and of Mr Byrne QC and Mr C Clarke (who appeared for the Crown).

Summary of evidence

The games in question are forms of baccarat, described as mini baccarat and midi baccarat. The game is played with either six or eight decks of cards (ie 312 or 416 cards). A dealer thoroughly shuffles all these cards and places them into a receptacle on the playing table called a "shoe". Casino patrons are then invited to place bets on any of the three possible results namely a win to Player, a win to Banker or a Tie. After all bets are placed the dealer draws cards from the shoe, allocating the first card to Player, the next to Banker, the next to Player and the next to Banker. A further one or two cards may be drawn depending on the value of the first four cards drawn. The values ascribed to each card are zero for tens and picture cards, 1 for aces, and face value for all cards from 2 to 9. The winning result (Player or Banker) in each hand is that which has a points value closest to 9. A winning bet placed on a Player hand is paid at even money. A winning bet placed on Banker is paid at even money less five per cent commission payable to the casino. A winning bet placed on a Tie is paid at 8-to-1. The betting limit is $5,000 per player per hand. Obviously the one shoe will enable more than 50 hands to be played before the cards are exhausted and the next game commences.

For mini baccarat (the game principally involved in this case) there were nine seated positions at the table, marked with numbers. Other players could bet from standing behind a seated player.

After each hand was played, the cards which had been exposed face up on the table would be picked up by the dealer in a set order (say from left to right) and would then be placed in the discard box on the table. It was therefore possible for a person who made notes of the details of each game as it was played to know the precise sequence in which cards had been placed back into the discard box. That, of course, would be of no use to anyone if the cards in the discard box were then properly shuffled into a new random order before being placed back into the shoe for a new series of games. However, if the dealer could be persuaded to shuffle the cards in a certain way so that a part of the pack remained in the same order as before, a person who had recorded the full sequence would be able to identify that part of the pack when it emerged in due course. Once it was identified, that person (and his associates) would know the order in which the cards would emerge in that unshuffled portion of the pack. The unshuffled portion was referred to in evidence as a "slug". A slug might for example consist of 30 or 40 cards. This would be enough for persons with the necessary knowledge to know the outcome in advance of a number of hands of baccarat before the slug ended and the random shuffled portion of the pack re-emerged.

The starting point for such a scheme would be to secure the connivance of a dealer to perform what is called a false shuffle.

During June 1998 surveillance staff of Jupiters Casino became aware of anomalies occurring on baccarat tables in the main gaming area. The anomalies seemed to occur at tables operated by croupiers Benjamin Kingston and Michael Baldry. Both dealers gave evidence for the Crown, and confirmed that they had been corrupted and had, at the request of persons whom they identified, performed false shuffles. They acted independently of each other. Each identified C L Lam as the Asian man who initially approached them, and who then introduced them to other Asian men including one who demonstrated to the croupier how the false shuffle could be performed.

The evidence shows (and each appellant concedes) that false shuffles were performed on five separate occasions, namely 10.07 pm on 17 June 1998, 1.30 am on 18 June 1998, 10.30 pm on 2 July 1998, 12.22 am on 7 July 1998 and 9.19 pm on 25 July 1998. Baldry's false shuffle was that of 7 July. All the others were performed by Kingston.

Some time might elapse after a false shuffle whilst hands were played before the slug started to emerge. Indeed, once the false shuffle had occurred and the slug had been placed in the shoe, it would not matter if the croupier were changed. On a number of occasions the hands resulting in the profits for the appellants were dealt by croupiers who had replaced Kingston or Baldry after the false shuffle had been performed, and of course, who had no knowledge of the false shuffle.

Five separate sequences of cheating were relied on by the Crown. The counts charged against each appellant are based on their conduct following each of the false shuffles.

First false shuffle 11.46 pm – 12.13 am: 17-18 June 1998

Count 1 – Duong

Count 2 – V T Lam

Count 3 – Truong

Count 4 – C L Lam

Second false shuffle 2.11 am – 2.29 am: 18 June 1998

Count 5 – Duong

Count 6 – V T Lam

Count 7 – Truong

Count 8 – C L Lam

Third false shuffle 11.27 pm – 11.54 pm: 2 July 1998

Count 9 – Duong

Count 10 – V T Lam

Count 11 - Truong

Count 12 – C L Lam

Fourth false shuffle 12.48 am – 1.07 am: 7 July 1998

Count 14 – V T Lam

Count 15 – Truong

Count 16 – C L Lam

Fifth False shuffle 9.19 pm – 9.45 pm: 25 July 1998

Count 20 – Duong

Count 21 – V T Lam

Count 22 – Truong

Count 23 – C L Lam

On this last occasion the game was stopped by police and casino officials after bets had been placed and before any money could be won. This resulted in charges of attempted fraud.

Following initial suspicion on the part of the casino, the emergence of slugs from earlier games was identified as the problem. It was observed that on such occasions a group of Asian men were placing large bets and winning large amounts of money. Suspicion focused on persons including the four appellants. The timing, sequence and size of each bet placed by each appellant in the same hands as the other appellants was all captured on videotape, as were instances of the recording of the cards played, the marking of betting sheets and personal interchanges between them. It was also possible to calculate how much was wagered and how much was won.

Different identification symbols were ascribed to the appellants by police during investigation and by counsel during the trial. For example, the police obtained photographs of C L Lam and referred to him as "target No 5". At trial, he was referred to as "person D", and for the sake of simplicity I will use the latter terminology when dealing with the evidence concerned with the identification of the various appellants. Duong will be referred to as "person A", V T Lam as "person B", Truong as "person C" and C L Lam as "person D".

Kingston gave evidence that while working as a croupier at Jupiters Casino he was approached by a man at an empty baccarat table after 3 am on 10 June 1998. The man asked him if he was interested in his system and made arrangements for a meeting at Charlie's restaurant in Surfers Paradise. Kingston identified the man who initiated the dealings as person D, that is to say, the appellant C L Lam. At Charlie's he met up with person D and two other Asian gentlemen whom he identified as persons A and B, that is to say as the appellants Duong and V T Lam. Person D (C L Lam) told him that they had a foolproof system that could win lots of money for all concerned and they would show him how it worked.

He then went with the three men to a room in a hotel which he initially described as the Regent Hotel, but which on the basis of other observations made by him may have been the Chateau Hotel. He went to a room where another Asian gentleman was sitting on a lounge watching television. He was unsure whether he was introduced to that person who, throughout the ensuing conversations and demonstration of how to do a "false shuffle", remained on the lounge watching television. He identified that fourth person as person C, that is to say the appellant Truong. The others, including Kingston, were seated at a table. Person A (Duong) was the one who showed him how to do the false shuffle. He appeared to be proficient in dealing and in casino procedures. Person D (C L Lam) explained to Kingston that after he had done the false shuffle he should present the cards to one of them to cut. After that they would be watching and would know what to do. Kingston was in the hotel room with these men for about an hour while arrangements were made and while he learned details of the false shuffle technique. He and person D (C L Lam) then exchanged telephone numbers. Person D (C L Lam) asked him when he was next dealing baccarat. Kingston said he did not know, and was asked to call when he knew he was dealing again. One of the men at the table told him that they were from Melbourne.

Subsequently Kingston telephoned person D (C L Lam) and nominated 17 June. On that date when dealing at a baccarat table he noticed the same four Asian men in the vicinity of the table. He proceeded to perform a false shuffle and offered the cards to one of these men to cut. This is confirmed by videotape evidence which shows that person A (Duong) made the cut. Kingston left the table after another 10 or 15 minutes, some time before the emergence of the slug. Some hours later, at 1.30am, Kingston returned to the table and performed another false shuffle, and remained there until 2.21 am. The appellants were not present at the time of the false shuffle but the video footage shows a man whom the jury could identify as Duong present at the table until well after Kingston left it. Each of the other appellants can also be seen to be present for an appreciable part of the time preceding Kingston's departure at 2.21 am.

After finishing work Kingston telephoned person D (C L Lam) and they arranged to meet outside McDonald's. At about 4.30 am a green Volvo arrived containing persons A (Duong), B (V T Lam) and D (C L Lam) and driven by a fourth man whom he did not know. They stopped some distance away and person A (Duong) gave him $5000 in cash. Kingston was asked to let them know when he was next working on baccarat.

Kingston advised person D (C L Lam) in due course of another date in early July. On that occasion while he was working at a table he saw the same four Asian gentlemen around the table. He performed another false shuffle and a short time later left the table. After finishing work he again met up with persons A (Duong), B (V T Lam) and D (C L Lam) and the same unknown fourth person. This time he was given $2000 in cash. He warned them that they were making suspicious bets and that there had been talk in the casino canteen about "huge Tie bets". Kingston was again asked to let them know when he was next dealing in baccarat.

During a later telephone call with person D (C L Lam), Kingston told him that he did not want to do it any more as the money was "dirty" and he couldn't do anything with it. Person D (C L Lam) suggested that he go to the Melbourne casino. Eventually he agreed to perform another false shuffle. He did so on 25 July at about 8.45 pm. Shortly afterwards the game was interrupted and he was taken to the Casino Crime Squad office. He was shown a series of photographs and inter alia identified the four appellants.

Kingston in due course pleaded guilty in the Southport Magistrates Court to charges laid under the Casino Control Act 1982. He was fined $8000 and ordered to pay $7000 in restitution.

Baldry gave evidence that shortly before 7 July 1998 he was approached at the casino by an Asian man who asked him if he wanted to make some money. Arrangements were made to meet at Charlie's the next day where he met two men whom he identified as person D (C L Lam) and person A (Duong), although he was not sure about person A, only "about 80 per cent on this one". The man he identified had told him they wanted him to do a false shuffle and demonstrated it. He gave his mobile telephone number to person D (C L Lam) and arrangements were made for him to advise when he was dealing in baccarat. He performed a false shuffle on 7 July. When he finished work he received a telephone call from someone whose voice appeared to be that of person D (C L Lam). Arrangements were made to meet outside the Chateau Hotel where person D (C L Lam) and another man gave him $1800. He told them that he did not want to do it again.

Baldry, like Kingston, pleaded guilty to a count of cheating under the Casino Control Act 1982 (s 103). He was fined $5000 and ordered to pay $1800 in restitution.

It is desirable to describe in greater depth the betting conduct of the appellants that was proved in relation to the particular counts. It may be observed at the outset that each of them happened to be present and placed extraordinarily large and successful bets on each occasion when a slug emerged following a false shuffle. Each of them was again present and was detained along with others who were present after the last false shuffle, but of course on that occasion they were detained before any money was obtained. Apart from an isolated challenge to the adequacy of the evidence of Truong’s participation following one particular false shuffle, I do not understand there to be any room for doubting the adequacy of the evidence in relation to the individual participation of all appellants in and their gain from the games which ensued after each false shuffle. Their defence is the absence of proof of dishonesty on their part in the making of these gains.

There could be no room for doubt as to their knowledge of the scam and the dishonesty of their purpose if Kingston's evidence is accepted. The main thrust of submissions is that the evidence of Kingston and Baldry identifying them as the persons involved in the arrangements for false shuffles ought not to have been received.

I turn to evidence of the actual betting in relation to counts 1 to 4. Kingston performed his false shuffle at 10.07 pm. A person identifiable as the appellant Duong was at the table and cut the cards. The following table demonstrates some of the betting behaviour of the respective appellants that ensued after 10.28 pm when a certain sequence of cards emerged.

Item	Time	Hand as dealt	Winner of Hand	Count 1 (Duong)		Count 2 (VT Lam)		Count 3 (Truong)		Count 4 (CL Lam)
Item	Time	Hand as dealt	Winner of Hand	Bet	Amt won	Bet	Amt won	Bet	Amt won	Bet	Amt won
1	10.28pm	Ace, 9, 9, 4, 5, 8				-				-
2	Next hand		Player			-$1425B				-$2375B
3	Further hands	(Details not here supplied)
4	11.44pm	Ace, 9, 4, 5, 8		-		-		-		-
5	11.46pm	4, 1, C, 6, C	Banker	$1360	$1234.50	$2000	$1900	$2500	$2375	$3300	$3135
6	11.51pm	-8, 9, C, C	Banker	$2500	$2522.50	$4000	$3800	$4800	$4560	$5000	$4750
7	11.59pm	C, C, C, 6, 9	Player	$5000	$5000	$3500	$3500	$5000	$5000	$5000	$5000
8	12.05am	C, 7, 7, 4, 4	Player	$5000	$5000	$5000	$5000	$5000	$5000	$5000	$5000
9	12.13am	10, Ace, C, 3, 4, 7	Player	$5000	$5000	$5000	$5000	$5000	$5000	$5000	$5000
10	12.15am		Player	-$1500		-$1500		-$2000		-$1500

It is of interest to note that the hand dealt at 10.28 pm (Ace, 9, 9, 4, 5, 8) closely resembled the sequence which commenced the slug which finally emerged at 11.44 pm (namely Ace, 9, 4, 5, 8). It may be inferred that the card sequence that emerged at 10.28 pm was mistakenly thought to be the emergence of the slug. Relatively large bets immediately emerged from V T Lam and C L Lam in the next hand, but they lost. Both bet on "Banker", which it will be noted was the winner in item 5 which was the first game played after the later actual emergence of the slug (see item 4). Large bets immediately followed from the appellants which soon increased to the table limit of $5000 for ensuing hands. At one stage a Player identifiable as V T Lam purchased further chips to the value of $1200. After the end of the slug at 12.13 am the size of the bets immediately diminished. All four appellants placed one further losing bet at 12.19 am and then left the table at 12.20 am.

It is unnecessary to reproduce similar tables in respect of the betting conduct of the appellants in respect of the other counts. So far as counts 5 to 8 are concerned, the first of the unshuffled cards seem to have emerged during the course of two hands dealt at 2.10 am and 2.11 am, at which point Duong can be seen to lean back in his chair and apparently speak to C L Lam. The size of the bets of all four quickly increased to the table limit of $5000 per hand each. No further bets were placed after the end of the slug.

Counts 9 to 12 are in relation to bets placed after the third false shuffle which took place on 2 July 1998. Prior to the shuffle the appellant C L Lam can be seen to be making notes on a betting sheet. At 11.28 pm when the hand was dealt preceding the ensuing heavy betting activity, V T Lam can be seen to make a signalling gesture by raising his arms. Very quickly the appellant C L Lam and the other convicted person, Chanh Hung Lam, can be seen walking quickly to the table. They immediately commenced betting. In the very next hand both Duong and C L Lam successfully placed bets on "Tie", the least likely of winning outcomes. After that, in the following three hands, the four appellants placed bets totalling $56,700, most of them for the maximum of $5,000.

At 11.34 pm, between hands, V T Lam can be seen walking from the gaming table and placing some torn pieces of a betting record card in the bin of a cleaner. The torn up card was retrieved by a surveillance supervisor and admitted into evidence. An examination of the sequence of unshuffled cards used for this section of betting reveals the same sequence of unshuffled cards to be written on the card discarded by V T Lam.

Counts 14 to 16 followed the shuffle performed by Baldry on 7 July. Prior to this shuffle C H Lam may be seen making notes on a baccarat card while cards were dealt in that game. At 12.50 am, by which time it may be inferred that unshuffled cards had begun to emerge, Truong purchased a substantial number of chips from the dealer, and purchased a further $3,000 worth of chips six minutes later. There was evidence suggesting that there was a defect in this particular slug in that two of the cards were in reverse order to those that had been dealt in the game preceding the false shuffle. This resulted in two losses followed by all players sitting out a hand and then placing large successful bets on the following two hands.

Counts 20 to 23 related to a false shuffle by Kingston on 25 July. This was preceded by C L Lam making entries on a baccarat card, with Truong standing by the table. The unshuffled cards, it may be inferred, began to emerge at 9.42 pm. Soon thereafter all four appellants placed large bets. At this point, with all the appellants having a large value of chips on the table, the game was stopped and the participants were instructed to stay where they were. Soon afterwards Duong can be seen wandering off into the crowd. He was found and escorted back to the table. He had walked away leaving $2,000 worth of chips sitting on the table.

The only appellant to give evidence was Duong. He had for some years been employed by the Crown Casino in Melbourne as a croupier. He described himself as a serious gambler. The appellant C L Lam was known to him as a patron at Duong's table in the Mahogany Room at the Crown Casino. According to Duong, the first occasion that he visited Jupiters Casino was 17 June 1998. He denied being at Surfers Paradise at the time when Kingston was shown how to do a false shuffle and denied seeing Kingston at any place other than inside the casino. By chance he had met C L Lam inside the casino on 17 June and they had spoken about gambling. He did not know either V T Lam or Truong prior to 17 June and, although he saw them in the casino after that, he had little to do with them and would have forgotten about them if he had not been charged and therefore had occasion to examine the video tapes. He gave his telephone number to C L Lam on 17 June but could not explain the record of a telephone call made to his number by C L Lam on 16 June. He did not remember receiving a series of telephone calls from C L Lam on 17 June. He thought that he could remember receiving a couple of telephone calls from Lam whilst he was inside the casino on 17 June but could not say what they were about. His only association with the appellant V T Lam and Truong was as another player in some of the games.

After their apprehension on 15 July 1998 all four appellants identified themselves to police by name. Their identifying features are clearly shown on photographs then taken and in other photographs of them that were placed before the jury.

The Crown case consisted of several bodies of evidence. The betting behaviour proved by the Crown on the part of each of these men might arguably on its own provide a sufficient circumstantial case to prove all elements of the charges including dishonesty. However, the evidence of Kingston and Baldry goes even more directly to that question. Furthermore, evidence was also produced of a good deal of telephone contact between the appellants at material times. This includes the following -

During the time covered by counts 1 to 8, phone records show phone contact between C L Lam and

V T Lam and Duong on 16.6.98;

Duong on 17.6.98;

V T Lam, Duong and Truong on 18.6.98 until 1.30 am.

During the period relevant to counts 9 to 12, phone records show phone contact between C L Lam and

V T Lam on 1.7.98;

Truong and Duong on 2.7.98;

Duong and V T Lam on 3.7.98.

There is further evidence of phone contact between V T Lam and Truong on 1.7.98.

During the period relevant to counts 14, 15 and 16, there is evidence of phone contact between C L Lam and V T Lam on 5, 6 and 8 July 1998.

During the period relevant to counts 20 to 23 there is evidence of

contact between V T Lam and Truong on 24.7.98; and

contact between C L Lam and V T Lam and Truong on 27.7.98.

When arrested C L Lam was found to be in possession of a mobile phone which records revealed had been used to call Baldry's phone on 24 July 1998 on two occasions.

There was extensive videotape evidence. A good deal of it was explained by the witness Colin Tough. He had long experience as a surveillance operator. He was permitted to give evidence for the purpose of assisting the jury to understand the actions of players and the significance of various actions that were taking place in each of the relevant games. Composite tapes were shown to the jury who were instructed to act on the evidence that they saw in the tapes. Mr. Tough did not purport to identify the appellants as such. For each game the relevant baccarat players were described by means of a letter (A or B etc). After describing a particular aspect of betting behaviour of a person the Crown prosecutor was permitted to tell the jury which of the seven co-accused was alleged by the Crown to be that player. Objections were taken at the outset to the reception of his evidence, on the basis that the jury should not be assisted by an expert witness on matters of this kind. However, none of the conclusions or opinions expressed by Mr Tough in explaining the video footage was at any stage challenged by or on behalf of any of the appellants as inaccurate.

Each of the tapes recorded not only the gambling activity, but also what was referred to as facial footage of the players. The facial footage in relation to counts 1, 2, 3 and 4 was only of short duration, but was in my view sufficient to enable the jury to identify each person. It was more extensive in relation to all other counts. All appellants can be seen for varying periods at the table after each false shuffle except in relation to Baldry's shuffle (shuffle 4) after which only V T Lam, Truong and C L Lam can be seen at the table. Video images were able to be frozen and photographs of each accused were able to be "lifted" from videos to assist the jury. Duong, in giving evidence seemed implicitly to accept that he was involved in the betting behaviour that has been described. Certainly he did not deny it, but rather sought to explain his participation in the relevant winning streaks as the product of extensive gambling experience or instinct. His evidence also confirms the presence of the other appellants on the night of 17 June 1998.

When detained each appellant gave the police a Victorian address. Each was in possession of at least one mobile telephone and was in possession of a substantial value of chips.

Further evidence shows that a person giving the name Truong booked two rooms at the Chateau Hotel for the nights of 6 June and 23 August 1998; and that a person by the name of Steve Truong of 107 Dentin Avenue, St Albans 3001, whose mobile number was 0418527807, made an overnight booking for the night of 6 July for two rooms and four adults. This was the same address and telephone number that Truong supplied to the police when arrested.

I turn now to the grounds of appeal.

Identification

Some commonality exists in the grounds raised in the various notices of appeal. Objection was taken to the admission of evidence of the procedure in which Kingston and Baldry identified the four appellants as to persons with whom they had had certain dealings. Many points raised in the respective notices of appeal^[1] may conveniently be discussed under the present heading. Similarly, common objection is taken to the alleged inadequacy of the summing up in relation to this subject.^[2] Individual focus is still necessary upon the case of each appellant as the extent of dealings between the identifying witnesses and the respective appellants varies. For example, Kingston had less contact with and observation of Truong than he had with the others.

Identification of appellants by Kingston from photographs

When the game was stopped on 25 July the players at Kingston's table were detained under the provisions of the Casino Control Act 1982. Kingston and Baldry were also detained. The police had prepared an operations summary which contained 10 "targets" consisting of Kingston, Baldry and eight Asian men whose gambling activity had excited suspicion in the preceding weeks. The document contained photographs of each, but the police did not know the names of any of the Asian men except one who is not among the present appellants. The police ascribed target numbers to the photographs of the respective suspects.

The evidence to which objection is principally taken is the showing of the target photographs to Kingston with the request "just identify who you know and who you don't know". The interview between Constable de Villiers and Kingston in which this request was made was tape recorded. Target 3 (Duong) was the first photograph shown. Kingston stated "I got told his name once" but he could not now recall it. He told de Villiers that he had seen that man and also target 4 (V T Lam), target 5 (C L Lam) and target 6 (Truong). He also indicated that he knew target 7, was uncertain whether he knew target 8 and had never seen target 9. He was then asked who he had met first out of the persons he knew. He indicated target 5 (C L Lam) and gave a brief account of the initial meeting where he met the other Asian persons and where he was shown how to do a false shuffle. He also indicated that the only four persons with whom he had had any dealings outside the casino were the four appellants.

Some discussion between the police and Kingston, which was not tape recorded, had preceded the taped interview. This included mention of Kingston's possible receipt of a "letter of comfort" in return for co-operation, and that it was better for him if he co-operated. It is also possible that Kingston was shown a photograph by police before the recorded interview but the evidence on this is conflicting.

Objection was taken at trial to the admission of this evidence, and indeed to the reception of any evidence from Kingston which purported to identify any of the appellants as the persons with whom he had had dealings outside the casino.

Counsel for the appellants submitted that the labelling of the appellants as "targets" was obnoxious and calculated to taint the identification process; that Kingston had a real incentive to ingratiate himself to police by implicating others; that there was a virtual invitation to Kingston to identify the persons in the photographs as persons with whom he had had dealings; and that it would be tempting for Kingston to identify any person whom the police had already videoed and labelled a target. The reception of the evidence was said to be inconsistent with principles expressed in Alexander v The Queen,^[3] Davies and Cody v The King,^[4] Pitkin v The Queen^[5] and Blick.^[6]

It is true that the procedure in question bore little resemblance to an identification by line-up or by selection from a photo board, where photographs of a variety of persons (hopefully not too different from one another) are presented to the identifying witness in the hope that he or she may be able to identify an offender. The police conceded under cross-examination that the procedure in question failed to conform to the Commissioner's instructions with respect to such exercises. Mr Griffin SC, for Duong, placed particular emphasis Kingston's status as an accomplice and upon the risk of his willingness to identify a false target. These are relevant matters and they were placed before the jury for consideration. But they are not necessarily factors of such force as to require that the evidence be excluded from the case.

It was submitted that the evidence should be excluded because the conflicting evidence as to what happened before the recorded interview raises a real risk that a full account of the identification procedure had not been given. Whilst the existence of such a risk is entitled to some weight, it does not in my view weigh heavily in the balance in the discretionary exercise of determining whether the identification evidence should be excluded.

Further complaint was made of the fact that the recorded interview was placed before the jury as an act of identification. The reception of such evidence, according to counsel for the appellants, gave extra weight to Kingston's evidence. At trial the learned trial judge decided to admit the evidence to enable the Crown to meet defence allegations made during cross-examination of Kingston by counsel for C L Lam. These included suggestions of drug abuse by him during the period when the offences occurred, of confusion and mental unreliability during that period, and that less than coherent state of mind existed when he made his identifications. The tape recording itself would afford the best means of showing his actual condition and conduct when he made the identifications, and this was permitted to be shown in re-examination. There were directions by his Honour as to the limited use that could be made of the evidence. However, quite apart from reception of the evidence on this basis, which I think was proper in the circumstances, it seems to me that unless the Crown were to be completely denied the opportunity of any identification of the appellants as persons with whom Kingston had had corrupt dealings outside the casino, it was necessary that the circumstances of his initial out-of-court identification be received in order to permit the reliability of his identification to be assessed.^[7] The evidence of the procedure that ensued between Constable de Villiers and Kingston on the night in question did not in my view unfairly bolster Kingston's evidence; it was the necessary means by which the reliability or otherwise of his claim to be able to identify the respective appellants might be known.

The extent to which an identifying witness knows the accused is the critical factor that underlies determinations by courts of the acceptability or unacceptability of an initial process of identification. This usually occurs at the moment when the witness first makes a connection between the doer of the act he has witnessed and the accused (or a photograph of the accused).^[8] In the present case Kingston's association with the appellants extended well over a month. Having dealt with them outside the casino he repeatedly saw them again inside the casino. The events of the first night consisted of a number of separate episodes. These included a lesson from Duong on how to do a false shuffle, the making of corrupt arrangements, and the exchange of telephone numbers with C L Lam. Even the episode in the room apparently occupied by Truong, with Truong in the background watching television, might be regarded as potentially memorable. This initial series of episodes was followed by more than one occasion when he was paid substantial sums of money with C L Lam, V T Lam and Duong all present. The same four men turned up at Kingston's table at or shortly after the time of his first false shuffle around 9.00 pm on the night of 17 June. Exhibit 36 shows that after the second false shuffle in the early hours of the following morning Kingston remained dealing for some time. In his presence one can see Duong writing on a card for a considerable period, handing the card to V T Lam and taking a seat at the table. A little later a man whom a jury might reasonably think was Truong, stood closely behind Duong for a time and then sat at the table and placed bets. Exhibit 39 which covers the period of the third false shuffle shows that V T Lam was present whilst Kingston was still dealing. Duong can also be seen in Kingston's presence in Exhibit 45 on the occasion of the fifth false shuffle.

Leaving aside Truong for the moment, the cases of C L Lam, V T Lam and Duong bear no resemblance to one where a witness sees a stranger perform a criminal act and later attempts to identify the person he has seen. The dangers recognised in Davies and Cody^[9] and Alexander^[10] that may destroy the value of such evidence are premised upon a lack of familiarity between the identifier and the suspect. Kingston's familiarity with these three men was considerable. It was not a matter of mere passing acquaintance.

Moreover Constable de Villiers did not direct Kingston to a single target. Kingston's responses to the basic instruction "just identify who you know and who you don't know" produced differential responses ranging through lack of knowledge, uncertainty and actual recognition.

Whilst there is potential merit in the submission that Kingston may have been tempted to nominate other persons in order to improve his own position, and in other complaints raised on behalf of the appellants, these were proper matters for the jury to consider rather than matters calling for the exclusion of the evidence. The police and casino staff had detained the participants in what was proved to be a game following a false shuffle, and further investigation was necessary. Mr Byrne QC for the Crown submitted that the suspects could have been lined up, individually or together, and pointed out to any potential witness who could properly have been asked "What do you know about this person?". There is very little difference in substance between such a procedure and the course taken by Constable de Villiers in obtaining information from Kingston. In my view the evidence in the present case suggests sufficient association and recognition on Kingston's part to have permitted a dock identification had that course been thought necessary.^[11] In all the circumstances I do not consider that the procedure leading to Kingston's designation of C L Lam, Duong and V T Lam was so irregular or unfair that the evidence should have been excluded.

The essential principle in Davies and Cody is contained in the following passage:

"if a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial."^[12]

Evidence of a particular act of identification should not be evaluated in isolation from other evidence in the case. The need to look at the other evidence in the case is echoed in Alexander v The Queen^[13] where it is accepted that on appeal the "proper approach is to consider whether the conviction can safely be sustained on the whole of the evidence".^[14] In the present case the evidence of Kingston and Baldry are not only consistent with one another, but their evidence combines convincingly with other segments of the evidence including the actual presence and betting behaviour of all four appellants following all relevant occasions of false shuffling. The Crown case is further strengthened by the unexplained evidence of contact between all four appellants by telephone at material times and by the corroboration of C L Lam's telephone contact with Baldry on 24 July.

In all the circumstances the learned trial judge is not shown to have erred in permitting the evidence of Kingston and Baldry, including evidence of the procedure followed when they first identified the appellants to the police, to be led, at least in the cases of C L Lam, Duong and V T Lam.

Identification of Truong

Separate consideration needs to be given to the case of Truong, which his counsel, Mr Chowdhury, submitted to be significantly different from that against the other three appellants. Truong appears somewhat older than the other appellants and is the only one of the four who wore spectacles. Kingston remembered that the man he described as watching television in the hotel wore glasses. The incident in the hotel room was by no means short, and the behaviour ascribed to Truong was odd enough to stand out.

The evidence of Truong's conduct inside the casino shows that he bet in a similar pattern to the others, although he had limited personal contact with the others whilst in the casino. He was never present when the cards were shuffled or cut. On the other hand, his betting conduct stamps him as a person of knowledge of the scheme, and Kingston noted that Truong was present with the other three appellants when he was dealing on 17 June. Furthermore, the videotape covering the second false shuffle (exhibit 36) shows a person who is in my opinion capable of being identified as Truong to be present while Kingston is dealing.

Kingston's familiarity with Truong is certainly less than his familiarity with the other three, but it was by no means limited to a fleeting glimpse or single observation. There is here some risk of mistaken identification which was not present in relation to the other appellants, whose true objection in my view rests on the risk of untruthful evidence rather than mistaken identification.^[15] The question whether adequate warnings were given by the learned trial judge in relation to the identification of Truong will be considered in due course. For the present, I am attempting to look at the evidence as a whole and to assess its capability of showing that Truong was a knowing participant in a dishonest scheme when he played the relevant games. The correctness of the decision to admit Kingston's evidence identifying Truong as an associate of the other three outside the casino early in June 1998 cannot be effectively assessed without such an examination.

The evidence shows that Truong actually played in the games following the false shuffles and obtained considerable sums of money by so doing. It also shows his association at material times with the others against whom a very strong case of dishonesty exists. This includes the fact that C L Lam's mobile telephone contacted Truong's mobile telephone seven times in the early hours of 18 June 1998 just after the second false shuffle. Mobile telephone contact was made at 1.50 am, 2.35 am and 2.42 am. There was further telephone contact later in the day at 12.46 pm, 12.47 pm, 1.30 pm and 1.36 pm. There was further telephone contact on 2 July at 7.11 pm, about three hours before Kingston's third false shuffle.

There is further evidence that a person giving the name Steve Truong booked two rooms at the Chateau Hotel for four adults on the night of 6 July 1998, which is the night of Baldry's false shuffle. The evidence of similar bookings in his name on 2 April, 6 June and 23 August 1998 is of arguable cogency, and I do not for present purposes propose to attribute any weight to the evidence of those particular bookings.^[16] It is enough to note that the booking of the night of 6 July 1998 in Truong's name is a circumstance tending to suggest his knowing involvement with the other men.

Mr Chowdhury finally submitted that there was a serious risk that when Kingston made his identification six weeks after the original meeting he identified someone who he had remembered seeing in the casino, and that the risk of potential error in his case was high. Having considered all the evidence I do not think that the risk of error or of falsity sufficiently high, or that the nature of Kingston's evidence was so weak or suspicious that the evidence should have been excluded in the exercise of the trial judge's discretion. In short, although his evidence was weaker in relation to Truong than the others, it was rightly admitted.

Identification of Duong by Baldry

Ground (iv) of Duong's Notice of Appeal objects to the reception of evidence of Baldry's initial identification of a photograph of Duong. Mr Griffin’s submissions were wider than this, and went to the question whether any of Baldry's evidence identifying Duong should have been received. Much of the relevant evidence has been set out above in paragraph 25. The men whose photographs he identified to the police were C L Lam and Duong. He had met them face to face at Charlie's restaurant for more than 20 minutes. Baldry admitted to difficulties in identifying one Asian person from another on the basis that they look fairly similar. When the police showed the target photographs to him he immediately and confidently picked out C L Lam. He then turned to a photograph of Duong saying initially, “it might have been this guy … who was with him at the time but he was not 100 certain about it”. Later he said, "I'd say about 80 per cent on this one". Mr Griffin, for Duong, also referred to the fact that a dock identification had been attempted at committal, and that although Baldry had again picked out Duong, he had not done so with confidence. He had said "I think that it could be the man at the far end possibly", and later stated "I think that is the man".

Mr Griffin submitted that Baldry's evidence identifying Duong was too uncertain to have been admitted at all, and cited Pitkin^[17] as authority for the necessity of something more than mere resemblance before such evidence should be received. It has never been the law that certainty is a necessary requirement before identification evidence may be admitted. Indeed, confident witnesses are persons in respect of whose evidence some need for caution may be required. Pitkin was a case where the evidence of resemblance ("this looks like the person") was the only evidence linking the accused with the crime. In the present case, although Baldry's identification of Duong as one of the men who participated in corrupting him was less strong than evidence to similar effect given by Kingston, it was nonetheless properly admissible. It was one of a number of circumstances that the Crown was entitled to prove against Duong. This is commonly the case in relation to identification where a number of witnesses, each of whom can describe some item of resemblance which standing alone would be insufficient to implicate the accused, may together constitute an adequate circumstantial case. Furthermore, I do not think that Baldry's identification of Duong could rightly be described as so weak that it should have been ruled out even if it had been the only identifying evidence. It is not, however, necessary to go so far; it was properly received as evidence which along with other evidence called by the Crown may properly be used by the jury to show that Duong had been directly involved in the corruption of the croupiers.

Adequacy of directions on identification

It was submitted on behalf of the appellants that the learned judge's directions on identification erred in failing sufficiently to identify matters undermining the reliability of Kingston's identification. It was submitted that the directions that were given were diminished by his Honour's emphasis upon matters that supported the identification.

In fact, his Honour gave a number of warnings of the kind referred to in Domican.^[18] The objection is that they were inadequate and that additional warnings were called for. Particular reliance was placed on his Honour's failure to mention that the police had not complied with the police service's operational guidelines. In Truong's case it was further submitted that specific adversion was required to the lack of interaction between Kingston and the man whom he later identified as Truong, and to the further fact that Truong was the only person wearing glasses in the photographs supplied. These latter submissions overlook the fact that his Honour gave redirections on the last two matters at the request of Truong's counsel. However it is true that he declined to refer to the non-compliance with the police service operational guidelines.

Particular objection was taken to the language of the learned judge in directing along the lines "I am obliged to draw your attention to …" in prefacing most of the warnings that he in fact gave. I do not think that there is anything objectionable per se in using that particular language provided that the substance of the warning is given. It is possible, of course, for warnings to be given in a grudging fashion such that the obligation to give the force of judicial office to such warnings would not be satisfied. This might be influenced by the tone of voice or subtle factors such as body language. However, the ordinary use of such phrases as "I am obliged to say" or "I am obliged to draw your attention to" tends to suggest a conscientious desire to share such information with the listener. I do not think that any negative inference should be drawn from the usage of these particular words in this case.

Many criticisms of the summing-up were raised on this appeal which might better be described as cavilling than raising true points of error. I do not propose to refer to all of these. It is sufficient to note that complaints were made about inadequate directions over the fact that the obnoxious word “target” had appeared on the photos, that not enough emphasis was placed upon Kingston’s taking of drugs, and that the difficulties of cross‑cultural identification were not adequately identified. I can only say that when the directions are read in full, all of these matters were properly and fairly mentioned by his Honour. There was further complaint that the summing‑up was “confusing and unduly lengthy”. Having regard to the fact that the trial had taken approximately four weeks, I do not think that this criticism is justified. Further complaints about the summing‑up will be separately mentioned when dealing with other grounds below. It may be foreshadowed that they do not expose any serious inadequacy or error.

Objection was also raised to the extent to which his Honour included matters favourable to the Crown case in the course of delivering the warnings. It is, of course, possible for the interspersing of such contrary matters substantially to undermine the effect of the warnings, as the Victorian Court of Appeal considered to have happened in Alexandridis.^[19] Having read the summing-up, I am prepared to say that on the whole it favoured the Crown. But it does not follow from this that it was unbalanced or unreasonable, or that his Honour failed to fulfil the obligations imposed by Domican. Indeed I am satisfied that they were sufficiently observed. Despite the failure to make specific mention of non-compliance with the police operation guidelines I do not consider that his Honour’s directions on identification were on the whole inadequate or that his comments on the facts were beyond the discretion available to a trial judge to comment on the evidence in the course of summing‑up the case to the jury.

Expert evidence to assist jury

A ground of appeal relied on by all appellants was that the learned trial judge erred in allowing a witness, Mr Tough, to give evidence in relation to what could be observed on the composite surveillance tapes. The evidence was admitted as opinion evidence which might be accepted or rejected, but which might potentially assist the jury. The main objection taken is that Mr Tough's expertise was not in relation to a sufficiently organised or recognised body of knowledge or experience such that special acquaintance with it by the witness would render his opinion of assistance to the court.^[20]

There were many aspects of the games shown on the tapes which would not readily be understood by the average lay juror, or for that matter by the members of this court. The submission on behalf of the appellants is that Mr Tough was, in effect, permitted to comment on evidence which the jury should have evaluated for themselves. In the course of playing the tapes, which occupied a considerable time at the trial, Mr Tough was permitted to give evidence stating his opinion of the identity of particular cards, the value of chips that were placed as bets, and the attribution of particular bets to particular players. He did not at any stage purport to identify the appellants as such. His evidence was given along the lines "Player 3 is betting $1000 on 'Banker'".

The jury were instructed to act only on the evidence in the tapes that they could see for themselves. In my view a jury could be considerably assisted in interpreting the videotapes of a game with which they were not particularly familiar by evidence from a person familiar with both its basic rules and the subtleties of play. Without assistance of this kind, a layperson would have little chance of knowing from the colour of chips or the size of their pile how much had been bet, or even the markings on the table which designate the object of the bet. Mr Tough was inter alia able to point out how the false shuffles were done, although that particular topic need not be pursued as it is no longer a live issue.

Mr Tough was an expert in two distinct areas, namely the rules and procedures of the game and of video surveillance of those games, having very extensive experience in both. The categories of expert evidence are unlimited and evidence of this kind is not inherently incapable of being the subject of opinion evidence.^[21] Whether Mr Tough is regarded as having given opinion evidence or original evidence of what he recognised from the videos, his evidence at no stage trespassed upon the function of the jury of identifying the accused persons. In my view his evidence was capable of giving considerable assistance to the jury in understanding what was depicted on the admissible composite tapes.^[22]

Mr Byrne QC for the Crown submitted that Mr Tough's evidence might be regarded as original evidence of what he recognised from the videos, citing R v Smith.^[23] The point at which fact and opinion may merge is of perennial interest, but I do not think it requires more than passing discussion in this matter. Problems of this kind have mainly emerged in the area of identification, when non-expert evidence is given such as "the man shown in this photograph is John Palmer".^[24] The receipt of such evidence was upheld in R v Palmer^[25] but disallowed in R v Griffith.^[26] In the latter case the court considered that the witness had no advantage over the trial court itself in telling whether a person present in court (whom the witness had observed on an earlier occasion) looked very much like a person depicted in a photographic exhibit. The court agreed with the principle stated in Wigmore^[27] that non-expert witnesses are not ordinarily allowed to give opinions when their inferences are such that the jury can be put into a position of equal vantage for drawing them. If the present matter were to be determined on this principle I would uphold its reception as Mr Tough possessed a considerable advantage and was capable of sharing it with the court. However, in my view the evidence is more correctly categorised as opinion evidence of an expert on a subject upon which, by practical training and experience, he had acquired sufficient knowledge and acumen to express an expert opinion. There are many fields in which an expert's skill does not derive from scholastic studies. Examples include the practical experience of an Aboriginal tracker,^[28] a mechanic with much practical experience of engines^[29] and even the capacity of a heroin addict to identify a substance as heroin.^[30] The subject matter of Mr Tough's evidence was such that his assistance was of potential assistance to a jury forming a sound judgment on it.^[31]

It is significant that at no point either at trial or upon appeal were any of the interpretations suggested by Mr Tough challenged as incorrect or even dubious. The jury were instructed to act on the evidence of their own eyes. If any rational basis existed for challenge, they could disregard his evidence. But none was suggested. Mr Byrne QC for the Crown submitted that this evidence was little different from evidence received without objection from Mr Warren, who produced blown up photographs of hands following particular slugs, and where the evidence was received without objection as an aid to the jury. Such aids may properly be received. In Butera^[32] the High Court recognised that transcripts of tapes, which were the interpretations of other persons of what had been said by others on tapes, might properly be regarded as aids to the jury. The evidence of Mr Tough went to the jury on a similar basis and might similarly be justified, although in my view it goes further than this, and is correctly characterised as opinion evidence. The central submission for the appellants that the jury should have been left to work out the videos for themselves should be rejected.

Crown Prosecutor's explanations during playing of tapes

It was submitted that the learned trial judge erred in allowing the Crown Prosecutor to nominate to the jury from the bar table the identity of the persons shown on the tapes. During the time while Mr Tough gave his evidence, the activities of a number of persons, often six different people, would be in view. It was desirable that the jury should understand, as each video was played, what allegations were being made in respect of the particular images. It could not reasonably be thought that the jury would remember the tapes so that, when the Crown Prosecutor made his submissions many days later they would know whether the submissions were supportable or not, and then be told, still later, by the learned trial judge, that they could play the tapes again when they retired and check the merit of the counsel’s submissions as to what they showed. In my view there was nothing improper in the Crown Prosecutor being permitted to direct the jury's attention to what were continually described as Crown allegations, so that they could relate the evidence to the particular issues as the evidence unfolded.

The submission for the appellants is that this procedure which was permitted by the learned trial judge, operated effectively to allow evidence to be given from the bar table, that it "added weight" to the Crown case as it was presented, and that it amounted to a continual "opening" by the prosecutor well into the trial, thus re-enforcing identification of the accused in an impermissible way. It was submitted that there was a danger that the jury would substitute the Crown Prosecutor's view of the facts and fail to make their own actual findings.

The character of the Crown Prosecutor's statements as allegations only was firmly maintained both by the Crown Prosecutor and the learned trial judge. The statements were of the kind "the Crown alleges that that person is person A". Each accused had, of course, been ascribed a letter and photographic exhibits had been tendered of the accused persons, so that at least in an indirect way the prosecutor was permitted to remind the jury of the Crown allegations as to which accused person was alleged to be visible at particular times in the videotapes. It is possible that such a licence might be abused, and a jury brainwashed into submission by a persistent Crown Prosecutor. However, I do not read the conduct of this trial as being of this nature. In my view the need for each juror to rely on his or her observations of the tapes was adequately maintained. I do not consider that this procedure reveals any error in the circumstances of this case. In the absence of assistance of this kind the jury would not be able to focus upon the true issues.

Trial judge commenting on effect of tape

The ground of appeal states “the learned trial judge erred by playing parts of composite tape 2 during the course of the summing‑up and commenting on things shown on the tape and identifying persons on the tape”.

At the outset I may say that it is open to a trial judge to comment on something that is shown in taped evidence just as much as to comment upon what might be seen in a photograph or how oral evidence might be interpreted. A trial judge has every right to comment on the facts, though of course there are well recognised limits beyond which a judge should not go.

The particular incident to which objection is taken is his Honour’s drawing to the jury’s attention and interaction between a grey‑headed male and the appellants Duong and VT Lam. His Honour said:

“So you can look at that to see whether that person [the elderly gentleman] might have been one who was acting dishonestly or whether he was simply an innocent bystander, if you like, who was given some encouragement by VT Lam who knew what was going to happen and he was very pleased about that”.”

His Honour’s comment offers a possible interpretation adverse to VT Lam’s case. However his Honour clearly directed the jury that what was depicted on the video was a matter for their own assessment.

This particular ground was argued on appeal by counsel for Duong, on the premise that this particular incident had not been the subject of comment in any of the addresses of counsel. That premise was challenged by Mr Byrne QC on behalf of the Crown during the appeal, and counsel remained at odds on this point. I have not been able to resolve it satisfactorily on the available materials, and for the purposes of the appeal will assume that his Honour’s reference to this particular incident on the tape was ad hoc.

It was further submitted by Duong’s counsel that his Honour should have reminded the jury that, because of the order of addresses, Duong’s counsel did not have an opportunity to answer his Honour’s theory. I do not think that there was any obligation to do so. The real question is whether his Honour went beyond the bounds of legitimate judicial comment on the facts.

The extent of a judge’s freedom for comment on matters of fact when summing-up to a jury has been frequently considered by the courts.^[33] In the present instance his Honour’s comment was not over-bearing or even cogent. His Honour at the time of making the comment emphasised that it was a matter for the jury. I do not consider that the jury could have been misled or diverted from the proper performance of their function by this particular incident.

Directions on circumstantial evidence

The evidence of Kingston and Baldry afforded direct evidence of dishonesty of the appellants. The Crown case also included direct evidence of their acts within the casino. Even so it could also be seen as a circumstantial case. His Honour gave directions to the jury on circumstantial evidence when dealing with submissions made on behalf of another accused person (Ea). His Honour directed as follows:

“… It was put to you in submissions by Mr Allen that the case, effectively, for Ea was that the Crown simply cannot exclude a reasonable possibility of innocence from the circumstances in evidence and in those circumstances, it is submitted, if the Crown cannot exclude an innocent possibility, the Crown has failed to prove its case and that is quite so, ladies and gentlemen, as part of the requirement the Crown must establish its case beyond reasonable doubt. If you are left after all of your discussion thinking there might be possible explanations for innocence, that you are unable to exclude them all in the case of a particular accused, then that means, really, that you are in a state of reasonable doubt and you would have to acquit that particular accused …”

That direction gave judicial imprimatur a correct statement in relation to circumstantial evidence. After the summing-up, upon request of trial counsel, his Honour agreed to redirect on circumstantial evidence. It is now submitted that his Honour’s redirections were inadequate in that the Peacock^[34] direction was not given.

The redirection was in these terms:

“… Now, ladies and gentlemen, I directed you carefully, you will recall, about the onus being on the Crown to prove guilt beyond reasonable doubt. Now, another way of putting that, if you like, in a circumstantial case, is this, that you are asked to draw the guilty inference against an accused in a circumstantial case and you have to be satisfied of guilt beyond reasonable doubt. So that necessarily involves your looking at whether or not there is an innocent inference from all of the circumstances, from all of the facts that you have found, and consistently with the onus and the standard of proof as I have described it to you, you could only find a person guilty, in other words draw the guilty inference, if that inference outweighs and really excludes any innocent inference beyond reasonable doubt. So I put the onus and standard of proof in that way and I direct you accordingly in a circumstantial case …”

It is not an easy task to present the point of the so‑called Peacock direction neatly and in terms with which lay persons are comfortable. The necessary direction could have been more shortly and clearly given than it was in this case, but in my view the net effect of the above passages is that the jury was sufficiently directed about how circumstantial evidence was to be approached. They could have been left in no doubt about the onus and standard of proof, and the necessity of excluding any innocent explanation.

Duong’s departure

It was submitted that his Honour should have, but failed to, direct the jury that they must not assume that Duong’s conduct in walking away from the gaming table after security officers had arrived on 25 July 1998 was conclusive of guilt.

The video‑tape shows that sometime after the game had been stopped and participants instructed to stay where they were, Duong wandered off leaving $2,000 worth of chips sitting on the table. He was found and escorted back to the table. In summing‑up the learned trial judge referred to the explanation Duong had offered in evidence for doing so. He had claimed that he wanted to see if some other table was going to be closed down. His Honour said to the jury that they might think it was a ridiculous explanation but that it was all a matter for them. He added that if they thought it was a ridiculous explanation they would be entitled to say to themselves, “Well, the only explanation is [sic] given is this: he hasn’t claimed any other innocent explanation, therefore, we reject any other innocent explanations and to draw the conclusion as to fact against Duong.” These comments were made in the course of dealing with submissions that had been made in relation to the evidence of Duong, who is the only one of the accused to have given evidence. His Honour concluded that particular discussion with the comment:

“Well, you wouldn’t say, of course, ‘we reject him therefore by reason of that fact we find him guilty or conclude guilt’. You would need to examine the whole of the evidence to see what you make of it.”

On appeal, counsel for Duong submitted that his Honour had, in effect, invited the jury to assume that there was something sinister about Duong’s movements which required an explanation by him, and that if his explanation was not accepted then the jury could conclude his guilt. I do not think that this accurately epitomises his Honour’s approach. Indeed in my view as well the incident reveals very odd conduct as to which he provided an explanation that might well be regarded as unsatisfactory or even absurd. It was conduct upon which competing submissions could be and obviously were made. I do not think that his Honour’s went beyond legitimate comment in the above passages.

Directions on “ridiculous explanations”

Counsel for Duong was permitted to add the following ground:

“The learned trial judge erred in directing the jury as to the use which could be made by them of statements made by the accused in evidence which they disbelieved on the basis of the statement being ‘a ridiculous explanation’”.

This point has to some extent been exposed in the passages quoted in dealing with the previous ground. In dealing with Duong’s evidence his Honour stated that if the jury concluded that he gave an explanation about something important and the jury rejected it because it was patently absurd, even if they thought that there were other possible innocent inferences, the jury could say to themselves:

“Well, we have heard from Duong on that point. He didn’t claim any of these other innocent explanations. The innocent explanation he did give was a patently ridiculous explanation which we reject.”

On that basis his Honour said they might reason, “Well, we are prepared in those circumstances to reject any other innocent explanation that he hasn’t claimed” and draw the guilty one.

In my view those particular directions are tortuous and unnecessary. They were no doubt influenced by considerations of competing explanations or inferences in the context of circumstantial evidence. It seems to me to be an exposition of tenets of reasoning best left unspoken. The notions are not inherently illogical but it is in my view unhelpful to complicate the task of a jury by inviting analysis of this kind.

Counsel for Duong submitted that this was an attempt to explain the principles in Edwards v R^[35] but plainly his Honour was not attempting to give and did not give such a direction.

Although his Honour repeated the point a number of times I would regard it as an infelicity rather than an error. If it were to be regarded as an error, I do not consider that, in the context of the other directions that were given, it could be regarded as having deprived any of the appellants of a fair trial or opportunity of acquittal that was fairly open.

Summing‑up unduly favourable to Crown

This ground was expressed in the following terms:

“The learned trial judge’s summing‑up:

was unbalanced;

was unduly favourable to the Crown;
deprived the jury of an adequate opportunity of understanding and giving effect to the appellants’ defence and assessing matters relied on in support of the defence.”

The points relied on in support of this ground have already been referred to above when dealing with the adequacy of directions on identification.^[36] Indeed, the submissions in support of the present ground merely repeated those earlier submissions. They have I think been sufficiently answered by the reasons already given. It might also be noted that the jury acquitted two of the seven accused persons. I have already noted that the summing‑up might be thought on the whole to have favoured the Crown. That however does not necessarily bespeak error. The Crown case was strong, and it is no part of a judge’s duty to tailor a summing‑up so as to make the defence cases appear as strong as the Crown case. In my view the present summing‑up does not come close to the level where an appeal court might discern a miscarriage of justice through imbalance in the summing‑up.

Verdicts of jury unreasonable, against weight of evidence and unsafe and unsatisfactory

The Crown case against each appellant was adequate, indeed strong. The jury was fully entitled to convict as it did.

It is noted that Mr Chowdhury on behalf of Truong submitted that the identification evidence in relation to his client was weaker than the others and that it was reasonably possible that he was not a knowing party. However for reasons earlier given including the specific discussion concerning Truong at paras 61 et seq, I consider that the evidence in his case affords a safe and satisfactory basis for his conviction also. I would add that the sheer concurrence and size of the bets he placed in relation to those of the co-offenders whenever a false shuffle occurred is of itself damning evidence. There is no merit in this ground.

Whether prima facie case against Truong on count 3

At the close of the Crown case application was made on behalf of Truong for a ruling that there was no case to answer on count 3. It was submitted that the video footage of the betting said to constitute count 3 was so poor that it was impossible for the jury to conclude that Truong was playing at that table at that time. The Crown asserted that he was seated at position 9 at the table. His Honour ruled that while the “facial footage” was insufficient to show that the person sitting at position 9 was Truong, other factors could lead a jury to conclude that the person betting at that position was Truong. One such factor was the existence of features that might be seen as consistent with those of the appellant such as the wearing of glasses. Mr Chowdhury however submitted that a number of persons at the table at that time appear to be wearing glasses.

The submission essentially concerns the quality and capacity of the evidence to go to a jury. I have examined the relevant exhibits and think it would be open to a jury to conclude not only that the person in number 9 position wore glasses but also that he was Asian. I also think that it would be open to a jury to make a connection between identifiable facial footage of Truong taken between 1152.08 and 1152.30 and the fraudulent betting which was recorded on another camera. It might also be possible to make a connection with Truong by means of clothing which he can been seen to be wearing on other occasions the same night. There is of course ample evidence of Truong’s participation along with the others immediately following each of the other false shuffles, the second of which occurred only a few hours after the time of count 3. In my view there was sufficient evidence to go to a jury in relation to count 3. I do not consider that the relevant portion of exhibit 36 is of such poor quality that the trial judge should have excluded it from the consideration of the jury in the exercise of his discretion.

Form of indictment

A further ground of appeal is that the learned trial judge erred in leaving to the jury consideration of the circumstances of aggravation. Counts 1 to 16 of the indictment each alleged that on a stated date a particular accused dishonestly obtained a sum of money from Jupiters Limited, and that the yield to that accused person from the dishonesty was of a value of more than $5,000. The charges were laid under s 408C of the Criminal Code. The crime of fraud is defined in subsection (1) as including dishonestly obtaining money from any person. Subsection (2) provides a maximum imprisonment of 5 years for the crime of fraud, and further provides liability to imprisonment for 10 years “if the property, or the yield to the offender from the dishonesty, is of a value of $5,000 or more”. It can be seen then that the Crown alleged the circumstance of aggravation provided for in s 408C(2).

Section 568(3) provides as follows

“In an indictment against a person for fraud the person may be charged and proceeded against on 1 charge even though –

any number of specific frauds of the same type has been committed, whether or not each act of fraud can be identified; or

the frauds have extended over any space of time; or
property applied belongs to different persons, and has come into the possession or control of the accused person at different times and subject to different trusts, directions, conditions, or duties to account; or
the property, benefit, detriment or inducement belongs to or is caused to different persons.”

That subsection and the ensuing subsections (4) and (5) replaced former provisions dealing with the bringing of charges based upon a general deficiency.

The objection, which was raised at trial and on appeal, is that the Crown ought to have charged a separate count for each dishonest bet made by each appellant. If the Crown was obliged to do this, it was submitted that the circumstance of aggravation could not be charged, because the net gain from any particular bet was not $5,000 or more. That is not necessarily so, because a number of the bets were of $5,000 at “evens”, so that the return from a successful bet would be $5,000 and would on its own permit the circumstance of aggravation to be charged. However I shall continue to address the principal question. It is whether the Crown may join a number of separate frauds in one count by use of s 568(3) so as to establish a circumstance of aggravation.

Section 408C (2)(d) speaks of “the yield to the offender from the dishonesty”. The “dishonesty” is obviously a reference to the dishonest act or “fraud” that is the subject of the charge. It seems to me that s 568(3) explicitly permits a number of specific frauds to be proceeded upon on the one charge even if separate acts of fraud can be identified. Under that section the Crown may elect to proceed either by preferring multiple counts of fraud or a single count of aggravated fraud.

In my view an election to proceed in the latter way is in any event beyond reproach when the charge is in respect of a process of dishonesty which continued over the period of a single baccarat game session in which a particular accused was engaged. Section 568(3) makes it unnecessary for the Crown, in order to justify the present indictment, to invoke the Merriman principle^[37] under which a series of acts that may be regarded as a transaction or one offence may be so charged provided it is clear what the offender is charged with. But in my view a series of consecutive bets by an offender upon the emergence of a particular slug would in any event satisfy the Merriman test had the Crown sought to bring the charge in that way. In short, quite apart from s 568(3), I think it was open for the Crown to allege fraud slug by slug just as it was open to allege fraud bet by bet.

I would uphold the Crown’s submission that the proper construction of ss 568(3) and 408C(2)(d) allows joinder of frauds so that proof of a yield of $5,000 or more from their commission properly establishes an aggravated offence. It is unnecessary to consider the alternative submission of Mr Byrne QC that the proof of individual yields of $5,000 from individual bets within the agglomerated charge would permit this court under s 668F(2) to confirm the verdicts in any event.

One further matter was raised. The primary element of the offence charged is obtaining a sum of money. The evidence shows that each appellant obtained chips of equivalent value to the money.^[38] The learned trial judge took the view, and I agree with it, that it was open to the jury to infer that each appellant cashed in his chips and obtained money from the casino of equivalent value. In that way all the elements of the charge would be satisfied even though there was no direct evidence as to when the cashing‑in occurred. In these circumstances although the charges could have been framed to allege the obtaining of property instead of the obtaining of money, it was not necessary to do so. The problem was raised by his Honour at trial with counsel and in due course, without dissent, his Honour put the matter to the jury in this way:

“You will see it is alleged that each accused obtained a sum of money.

The betting was done … with casino chips and the winning bets are paid out in the equivalent number of chips.

But, of course, casino chips are things you can go and cash in for actual money. So, there is no dispute about this element that each of the accused obtained a sum of money so you needn’t think there is any technicality about that. Each accused obtained a sum of money in total from their betting procedures, the very ones that the Crown relies upon in this case.”

No objection was raised to that direction then or now. Had any objection or issue been raised on this point, there is little doubt that further consideration would have been given to it, and that any necessary amendment would have been sought and obtained. I do not think that it is appropriate at this stage to speculate about the possibility that the chips might not have been cashed in. It was open to the jury to infer that they were, and that the appellants thereby obtained money from the casino.

I do not think that it is now open to contend that it is necessary for the Crown to seek any amendment to the indictment. I do not find it necessary to consider other arguments raised by Mr Byrne in response to such suggestions.

Applications for leave to appeal against sentence

Duong was sentenced to three years imprisonment on each of three counts of aggravated fraud and to 18 months on attempted fraud. Truong was sentenced to two and a half years on three counts of aggravated fraud, one and a half years on another count of aggravated fraud and 12 months on a count of attempted fraud. VT Lam was sentenced to three years imprisonment on four counts of aggravated fraud and 12 months on attempted fraud. CL Lam was sentenced to three years imprisonment on four counts of aggravated fraud and to 12 months on attempted fraud.

In imposing the sentences his Honour expressly adverted to the need to observe the principle of parity. However I do not think that any issue of parity arises in relation to the sentences imposed upon Kingston and Baldry. They were charged under the Casino Control Act which imposes a maximum penalty of two years for cheating. They were no doubt the beneficiaries of a prosecutorial discretion. It is impossible to attempt any judicial comparison between the present matters with the position of Kingston and Baldry. They co-operated with the authorities and actually gave evidence against the applicants. In my view the need to avoid disparity is relevant to the sentences upon the applicants inter se, but no true question of this kind arises in relation to Kingston and Baldry.

The effective sentences are all of three years, with a slight reduction in Truong’s case. The maximum sentence for each aggravated charge was 10 years imprisonment. I shall return in due course to the question whether sentences in the area of three years are manifestly excessive for offences of fraud of the present dimensions.

The evidence shows the total yield to each accused to have been as follows:

Duong - $50,917

Truong - $59,685

VT Lam - $51,224

CL Lam - $70,900

All four applicants were residents of Victoria and had no previous convictions.

A submission made on behalf of all applicants is that his Honour erred in dealing with each on the basis that he was part of an overall scheme which netted approximately $257,000 from the casino. The submission proceeds that each offender was separately charged as a principal offender under s 7(1)(a) of the Code and that the indictment alleged specific amounts obtained by each of appellant. Accordingly it is said that each applicant has been punished in relation to an offence of greater magnitude than that with which he has been charged. I do not think that this happened. The real question is whether the fact that each knew that he was contributing to a scheme that was defrauding the casino of a larger sum of money should be excluded from consideration. I do not think that the contemplation of such a fact runs counter to any principle recognised in R v D^[39] or R v De Simoni.^[40] The very nature of the criminal activity was that each would individually benefit from a combined criminal enterprise. It was tantamount to a raid in which each raider immediately obtained what he could get. Unlike some criminal enterprises there was no occasion thereafter to split up the proceeds. In my view it would defy common sense to exclude consideration of the fact that each criminal act that each applicant committed was part of an organised criminal enterprise and that each knew that the combined result of that enterprise would be to defraud the casino of a very large sum of money.

No error is demonstrated in his Honour adverting to the amounts individually obtained and at the same time noting that each appellant was knowingly instrumental in causing a far greater loss to the casino.

In the course of submissions on sentence offers of restitution were made, but his Honour considered these too tenuous to be reliable.

I turn now to the submissions made in relation to each applicant.

Duong

Counsel for Duong submitted that both VT Lam and CL Lam were involved more heavily in the preparations than Duong but they had all received the same sentence (3 years). It is true that Duong was convicted of one less offence than the other appellants but this is not a particularly influential factor. It was submitted that VT Lam and CL Lam had been more pro-active than Duong. However Kingston’s evidence demonstrates that Duong played an important role in Kingston’s corruption. Duong, who was a Crown Casino dealer, was the person who showed Kingston how to perform the false shuffle. He was obviously involved in the early planning of the scheme and was a key player in engaging Kingston, although he was not the person who showed the technique to Baldry. Overall I do not think that the circumstances obliged his Honour to differentiate the sentence imposed upon Duong from that imposed upon VT Lam and CL Lam.

Truong

Truong was slightly older than the other applicants. Although present at the time, he played no active part in Kingston’s corruption. His Honour noted that Truong tended to stand aside and considered that there was some basis for distinguishing him from the other offenders having regard to the nature of his involvement. His Honour also referred to Truong’s good work history. In the result Truong’s sentence (two and a half years) was six months less than that imposed on the other applicants.

VT Lam

This applicant was shown to have played an active and positive role in the corruption of Kingston. The tapes show him to have been in active inter-relation with other offenders at the commencement of a slug. Other than his hitherto unblemished record there was little that could be said on his behalf.

CL Lam

This applicant emerges as perhaps the most active of all in the approaches to Kingston and co-ordination with the others. The yield obtained by him was also somewhat greater than that of the others. Like the others he had no previous convictions. He was a compulsive gambler with some medical problems and produced good references showing community contribution. In the end his Honour decided he could not appropriately distinguish this applicant from the others.

The question remains whether the sentences are manifestly excessive. Mr Byrne QC for the Crown referred the court to Jacobson^[41] and The Queen v Ching, ex parte Attorney-General.^[42] Both cases involve the fraudulent obtaining of money involving amounts comparable with that obtained individually by the present applicants. Jacobson was sentenced to terms amounting to four years imprisonment on seven counts of obtaining money by false pretences. The total involved was $52,500, but the money was obtained from persons in circumstances where the losses to the individuals were described as “heartbreaking”. Jacobson had minor previous convictions and went to trial. The maximum sentence available on those particular charges was five years. Ching was an Attorney-General’s appeal in respect of fraud practiced upon a financial institution from whom Ching fraudulently obtained almost $60,000. He was initially sentenced to perform 240 hours community service. Ching had no previous convictions. He also went to trial. The Court of Appeal substituted a sentence of two years imprisonment with recommendation for consideration of parole after nine months. The sentence may be regarded as conservative having regard to the fact that it was substituted upon an Attorney-General’s appeal and Ching had already performed part of the assigned community service before the appeal was heard.

Whilst some distinctions might be drawn between defrauding a casino and defrauding a financial institution, in principle it is difficult to see that the punishment should be very different. The essential features of the present offences are their deliberation, their careful planning, the corruption of others, its ongoing nature and the fact that it was ended only by the shutting down of the final slug.

I do not think it can be said that the three year sentences in the present matters were excessive or that any error has been shown in the sentencing process. The slight reduction in Truong’s case was appropriate. I would therefore refuse leave to appeal against sentence in each matter.

Orders

1. Each appeal against conviction is dismissed.

Each application for leave against sentence is refused.

CHESTERMAN J: I agree with the reasons of and orders made by Thomas JA.

Footnotes

[1] C L Lam's notice of appeal (grounds 2(a), 2(b), 2(c) and 2(d)), Truong's notice appeal (grounds 1(b), 1(d) and 1(f)), Duong's notice of appeal (grounds (ii), (iii), (iv) and 1A) and V T Lam's notice of appeal (grounds (b) and (d)).

[2] C L Lam's notice of appeal (grounds (g) and (i)), Duong's notice of appeal (grounds (ix) and (xi)) and V T Lam's notice of appeal (grounds (e) and (h)).

[3] (1981) 145 CLR 395.

[4] (1937) 57 CLR 170.

[5] (1995) 69 ALJR 612.

[6] (2000) 111 A Crim R 326.

[7]R v Murphy [1996] 2 Qd R 523, 528; Alexander v The Queen above at 403-408.

[8]R v Murphy above at 528; Davies and Cody above at 181-182.

[9]Davies and Cody above at 180-183.

[10]Alexander above.

[11]R v Savage CA No 83 of 1993, 8 March 1994.

[12] Davies and Cody above at 182.

[13] Alexander above at 401.

[14] Cf R v Carusi (1997) 92 A Crim R 52.

[15] R v B [1999] QCA 105; CA No 429 of 1998, 13 April 1998, paras [8-9, 17] per McPherson JA, and paras [2-6] per Thomas JA; R v Tran [1999] QCA 170 of 1999, CA No 453 of 1998, 14 May 1999, paras [4-6].

[16] There was argument at trial as to whether the booking of 6 June might be that for the venue of the meeting which Kingston originally thought occurred on 10 June. The Crown proved that he must have been mistaken as to the latter date as he had not been employed at the casino on 10 June, but he had been employed on 6, 9 and 11 June, and contended that 6 June was probably the date on which the original meeting occurred.

[17] Pitkin above.

[18] Domican v The Queen [1992] 173 CLR 555.

[19] [1994] 76 A Crim R 391, 396-397.

[20] R v Bonython (1984) 15 A Crim R 364 per King CJ at 366. Compare Farrell v The Queen (1998) 194 CLR 286.

[21] Weal v Bottom (1966) 40 ALJR 436, 439.

[22] Cf Butera v Director of Public Prosecutions (Vict) (1987) 164 CLR 180, 188.

[23] (1999) 47 NSWLR 419, appeal allowed but reasons for judgment not yet published see Smith v R (2001) S 233 and 234 of 2000, 21 June 2001.

[24] R v Palmer [1981] 1 NSWLR 209.

[25] Ibid.

[26] [1997] 2 Qd R 524.

[27] Wigmore, J, Wigmore on Evidence (1978) Vol 7 at 32.

[28] R v Harris (1997) 94 A Crim R 454.

[29] R v Rose (1993) 69 A Crim R 1, 9.

[30] Price and Stamford v R [1981] Tas R 306.

[31] Bonython above at 366.

[32] Butera above at 188.

[33] eg R v Guerin [1967] 1 NSWR 255, 273; R v Giffin [1971] Qd R 12, 17; Bourke (1987) 28 A Crim R 216; (1988) 62 ALJR 425.

[34] Peacock v The King (1911) 13 CLR 619.

[35] (1993) 178 CLR 193.

[36] See paras [69-73] above.

[37] DPP v Merriman (1973) AC 584, 593; R v T [1993] 1 Qd R 454.

[38] cf Casino Control Act 1982 s 65.

[39] [1996] 1 Qd R 363.

[40] (1981) 147 CLR 383.

[41] CA No 319 of 1994, 26 October 1994.

[42] CA No 269 of 1992, 21 October 1992.

Editorial Notes

Published Case Name:
R v CL Lam, Truong, Duong and VT Lam
Shortened Case Name:
R v CL Lam, Truong, Duong and VT Lam
MNC:
[2001] QCA 279
Court:
QCA
Judge(s):
McPherson JA, Thomas JA, Chesterman J
Date:
20 Jul 2001

Litigation History

Event	Citation or File	Date	Notes
Appeal Determined (QCA)	[2001] QCA 279 (2001) 121 A Crim R 272	20 Jul 2001	Appeals against conviction dismissed; applications for leave to appeal against sentence refused: McPherson JA, Thomas JA, Chesterman J

Appeal Status

Appeal Determined (QCA)

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Alexander v The Queen	View on:JADE(1981) 145 CLR 395	4 citations Jump To Cite 1 - (1981) 145 CLR 395 Cite 2 - (1981) 145 CLR 395 Cite 3 - (1981) 145 CLR 395 Cite 4 - (1981) 145 CLR 395
Bourke v R	(1988) 62 ALJR 425	1 citation Jump To Cite 1 - (1988) 62 ALJR 425
Butera v Director of Public Prosecutions (Vict)	View on:JADE(1987) 164 CLR 180	3 citations Jump To Cite 1 - (1987) 164 CLR 180 Cite 2 - (1987) 164 CLR 180 Cite 3 - (1987) 164 CLR 180
Davies and Cody v The King	View on:JADE(1937) 57 CLR 170	5 citations Jump To Cite 1 - (1937) 57 CLR 170 Cite 2 - (1937) 57 CLR 170 Cite 3 - (1937) 57 CLR 170 Cite 4 - (1937) 57 CLR 170 Cite 5 - (1937) 57 CLR 170
Director of Public Prosecutions v Merriman	View on:ICLRUK(1973) AC 584	2 citations Jump To Cite 1 - (1973) AC 584 Cite 2 - (1973) AC 584
Domican v The Queen	View on:JADE(1992) 173 C.L.R 555	2 citations Jump To Cite 1 - (1992) 173 C.L.R 555 Cite 2 - (1992) 173 C.L.R 555
Edwards v The Queen	View on:JADE(1993) 178 CLR 193	2 citations Jump To Cite 1 - (1993) 178 CLR 193 Cite 2 - (1993) 178 CLR 193
Farrell v The Queen	View on:JADE(1998) 194 CLR 286	1 citation Jump To Cite 1 - (1998) 194 CLR 286
Peacock v R	View on:JADE(1911) 13 C.L.R 619	1 citation Jump To Cite 1 - (1911) 13 C.L.R 619
Peacock v The King	View on:JADE(1911) 13 CLR 616	1 citation Jump To Cite 1 - (1911) 13 CLR 616
Pitkin v The Queen	(1995) 69 ALJR 612	2 citations Jump To Cite 1 - (1995) 69 ALJR 612 Cite 2 - (1995) 69 ALJR 612
R v Alexandridis	(1994) 76 A Crim R 391	2 citations Jump To Cite 1 - (1994) 76 A Crim R 391 Cite 2 - (1994) 76 A Crim R 391
R v B	[1999] QCA 105	1 citation Jump To Cite 1 - [1999] QCA 105
R v Blick	(2000) 111 A Crim R 326	1 citation Jump To Cite 1 - (2000) 111 A Crim R 326
R v Bonython	(1984) 15 A Crim R 364	2 citations Jump To Cite 1 - (1984) 15 A Crim R 364 Cite 2 - (1984) 15 A Crim R 364
R v Carusi	(1997) 92 A Crim R 52	1 citation Jump To Cite 1 - (1997) 92 A Crim R 52
R v D	[1996] 1 Qd R 363	2 citations Jump To Cite 1 - [1996] 1 Qd R 363 Cite 2 - [1996] 1 Qd R 363
R v De Simoni	View on:JADE(1981) 147 C.L.R., 383	2 citations Jump To Cite 1 - (1981) 147 C.L.R., 383 Cite 2 - (1981) 147 C.L.R., 383
R v Giffin	[1971] Qd R 12	1 citation Jump To Cite 1 - [1971] Qd R 12
R v Guerin	(1967) 1 NSWR 255	1 citation Jump To Cite 1 - (1967) 1 NSWR 255
R v Harris	(1997) 94 A Crim R 454	1 citation Jump To Cite 1 - (1997) 94 A Crim R 454
R v Murphy	[1996] 2 Qd R 523	2 citations Jump To Cite 1 - [1996] 2 Qd R 523 Cite 2 - [1996] 2 Qd R 523
R v Price and Stamford	(1981) TasR 306	1 citation Jump To Cite 1 - (1981) TasR 306
R v Rose	(1993) 69 A Crim R 1	1 citation Jump To Cite 1 - (1993) 69 A Crim R 1
R v Smith	View on:NSWLR(1999) 47 NSWLR 419	1 citation Jump To Cite 1 - (1999) 47 NSWLR 419
R v T	[1993] 1 Qd R 454	1 citation Jump To Cite 1 - [1993] 1 Qd R 454
R. v Bourke	(1987) 28 A Crim R 216	1 citation Jump To Cite 1 - (1987) 28 A Crim R 216
R. v Palmer	View on:NSWLR(1981) 1 NSWLR 209	1 citation Jump To Cite 1 - (1981) 1 NSWLR 209
The Queen v Griffith	[1997] 2 Qd R 524; [1995] QCA 159	1 citation Jump To Cite 1 - [1997] 2 Qd R 524
The Queen v Tran	[2000] 2 Qd R 430; [1999] QCA 170	1 citation Jump To Cite 1 - [1999] QCA 170
Weal v Bottom	(1966) 40 ALJR 436	2 citations Jump To Cite 1 - (1966) 40 ALJR 436 Cite 2 - (1966) 40 ALJR 436

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
R v BBO	[2008] QCA 276	2 citations
R v Doyle	[2010] QCA 204	2 citations
R v Liu	[2006] QDC 247	2 citations
R v Liu	[2007] QCA 113	3 citations
R v Mackenzie	[2016] QCA 277	2 citations

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R v CL Lam, Truong, Duong and VT Lam[2001] QCA 279