R v Liu[2006] QDC 247

DISTRICT COURT OF QUEENSLAND

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE FORDE

THE QUEEN

v.

ZHIGANG LIU, WEI SAHN LUI, JIANWEN LIU,

IBERAHIM ABBAS, WAIBIN SHAO and

SANGTAO ZHAO

SOUTHPORT

..DATE 18/07/2006

..DAY 2

RULING

THE COURT RESUMED AT 9.17 A.M.

HIS HONOUR:  The accused, Zhigang Liu, Wei Sahn Lui, Jianwen Liu, Iberahim Abbas, Waibin Shao and Sangtao Zhao are charged that on the 17th day of May 2005 at the Gold Coast, they dishonestly obtained a sum of money from Jupiters Limited, and the property was of a value of more than $5,000.

PARTICULARS

The Crown in this case allege that the accused attended at Jupiters Casino at Broadbeach on the 17th of May 2005, and were involved in a game of mini baccarat.  Each of the accused participated in a dishonest scheme whereby an extra card is available to be introduced into the game by one of the players.  The player with the card has the ability to swap cards to affect the outcome of the game.  The other players have an advantage of being in a position to place bets against this player with confidence that they have an increased chance of winning.

The approximate net winnings to the group of $765,397.50 accrued over a period in which the extra card was available to be introduced into the play.  They are the matters referred to in the particulars.

The Crown relies upon the provisions of section 7(1)(a), (b) and (c) of the Code, to prove the accused either committed the offence that the other accused did enact for the purpose of aiding another, or aided the other to commit the offence.  All accused are charged as parties to a fraud to the value of $5,000 or more.

The elements that have to be proved under section 7 include that someone committed the offence, or that the defendants in some way assisted the perpetrator to commit the offence.

It is also relevant that the defendants knew that the perpetrator intended to fraudulently obtain the money; that is, those defendants who were aiding or abetting joint criminal enterprise.

In its particulars, the Crown rely upon circumstantial and direct evidence to attempt to establish that the defendants aided by participating in a joint criminal enterprise.  A joint criminal enterprises arises where the persons reach an understanding or arrangement amounting to an agreement between them and others, that they will commit a crime.

The arrangement or understanding need not be expressed, and its existence may be inferred from all the proven evidence.  See the Queen and Tripodi (1961) 104 CLR 1.

A defendant may assist or aid another by giving actual physical assistance in the commission of an offence, but it is not necessary for the Crown to show actual physical assistance.  Voluntary and deliberate presence during the commission of an offence without opposition or real dissent may be evidence of wilful encouragement or aiding.

The particulars provided relate to what actually occurred at the table.  Also, there is evidence supporting the involvement of each accused.  Those particulars provide, in my view, sufficient detail to know the case to be met.  The occasion is specifically referred to.  The movements of the defendants, both before and after, is detailed.  The manner in which the fraud is alleged to have occurred by the use of the extra card clearly defines the acts.  See the Queen and  Trifyllis QCA 358 of 1998, at pages 11 to 15; R v. S 2000, 1 Queensland Reports 445 at 452; and the Queen and Juraszco, 1967, Queensland Report 128 at 135.

Expert evidence from Mr Tootell:  Reading:

Mr Tootell is the Assistant Manager Of Surveillance at Conrad Jupiters Casino.  It is suggested in submissions that he is an expert in two areas, namely the rules and procedure of the game of mini baccarat, and of video surveillance of those games.  That type of evidence was allowed in R v. Lam and Others, (2001) QCA 279.

This is not a case of a witness trying to identify persons from a video where identification is an issue in the case.  The jury in Lam's case were instructed that they should act on the evidence in the tapes that they could see for themselves.  The expert in that case was similarly qualified to Mr Tootell.  The Court of Appeal remarked at page 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."

Mr Tough also gave evidence which assisted the jury in interpreting the video tapes of the game of baccarat.  The nature of the evidence included:  his opinion of the identity of the particular cards;  the value of the chips that were placed as bets;  the significance of various actions that were taking place in each of the relevant games (see (Lam) para 43), for example, the type of movement consistent with secreting a card, that is, the subtleties of the play (see (Lam) para 79);  and the attribution of particular bets to particular players (see (Lam) paras 43 and 78).

I am satisfied that by practical training and experience, the evidence of Mr Tootell is that of a person who has acquired sufficient knowledge and acumen to express an expert opinion ((Lam) para 81).  As was mentioned by the Court of Appeal in Lam, judges and jurors may lack the expertise to understand the intricacies of the game of baccarat.

Mr Callaghan relied upon the principal of Clark and Ryan, 1960, 103 CLR 486.  It was further refined in HG v. Queen (1999), 197 CLR 414 at paras 43 and 44.

"43. To paraphrase what was said by Dixon CJ in Clark v Ryan (41) about the expert witness in that case, the evidence the defence sought to lead from Mr McCombie really amounted to putting from the witness box the inferences and hypotheses on which the defence case wished to rely.

44. This was not a trial by jury, but in trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined in accordance with s.79 to opinions which are wholly or substantially based on their specialised knowledge.  Experts who venture "opinions" (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted.  The opinions which Mr McCombie was to be invited to express appear to provide a good example of the mischief which is to be avoided."

Those observations should be considered in light of what the Court of Appeal said in Lam's case.  The defence do not challenge the principles in Lam's case, however one should approach the case on the basis also of the observations of Wigmore referred to at para 18 "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 of drawing them."  The game of baccarat is not familiar to all.  The defence concede that Mr Tootell can explain the nature of the game.  However, there would be subtle movements of the hand or other conduct which may not be acceptable in a game.  Such movements may be consistent with cheating.

The person giving the evidence should not swear the issue, but in my view, the effect of subtle movements may necessitate the jury being informed of their effect in such a game.  A jury could not be in a position of equal vantage in such a situation.

Mr Boe drew attention to the evidence relating to the expertise of Mr Tootell (see pages 51 to 52 of the transcript).  However, less formal or limited experience and training should not deprive him from expressing a view about the nature of the conduct of a defendant being contrary to the rules required during a game of baccarat.

A jury lacks that limited expertise, and could not be seen to be in as good a position to draw an inference.  The other defendants, except Ms Liu who is not represented, supported the submissions of Mr Boe and Mr Callaghan.  Mr Green argued that any evidence of conduct which distracted the staff should not be the subject of expert evidence.  I agree.

The Crown might like to point out certain evidence but the jury is in as good a position as Mr Tootell to observe such conduct.

He might be able to assist the jury as to the stage of the game when certain actions are noted.  Mr Lewis drew attention to the fact that para 19 of Mr Tootell's statement would not be relied upon by the Crown, who agreed.

His other submission related to the lack of evidence against his client.  He supported the other submissions of Mr Callaghan and Mr Boe.

The Crown has listed the types of evidence which it seeks to lead in its written submissions, Exhibit 5 (paras 4.3 and 4.4).  It is noted that the Crown does not seek to lead certain evidence objected to by the defence in paragraph 23 of Exhibit 1, for example, the use of the word "dishonest" or "cheating" to describe the body movements or the statistical impact of the noted card in play upon betting odds.  In relation to the latter, the benefit of a low number card in the game will soon become obvious to the jury.  It might be part of the Crown's opening as well, where the jury are invited to draw inferences.

Having considered the objections to the evidence of Mr Tootell, I find that, consistent with the above discussion on the cases, that the Crown is entitled to lead the evidence referred to in paragraphs 4.3 and 4.4 of the written submissions, being Exhibit 5:

"4.3 In response to the specific areas identified the Crown submits that Mr Tootell's evidence whereby he identifies the hand and other bodily movements of defendants (particularly Mr Zhao) that form the basis for his opinion that an extra card was available for use is admissible.

4.4 Expressly the Crown submits that Mr Tootell is entitled to comment that in his experience:

i) that specific conduct is unusual;

ii) that in his opinion there was an opportunity for a card to be swapped (introduced) and when and how this occurred;

iii) that the hand movements of Mr Zhao provide the opportunity for card swapping and are consistent with card swapping;

iv) that these hand movements of Mr Zhao at the relevant times are different to his hand movements on other occasions;

v) to explain, based on his understanding of game of baccarat, how an added card would impact on the game and the chances of controlling the results of the game."

Joint Criminal Enterprise

Once this is reasonably established, evidenced by the Crown - evidence may be led by the Crown, of statements and conduct and documents of one defendant, made in pursuit of the common design, and that evidence may be led against other defendants.  (See Rhodes and Kissling 1999 QCA 55 at para 3, Queen and Ahern 1988 165 CLR 87 at 95).

This would allow evidence for the bank accounts to be admitted.  It was submitted that such evidence should not be led against Mr Zhao.  If the particulars alleged by the Crown are established at trial and Mr Zhao was found to be part of this arrangement or agreement to defraud, then such evidence is admissible against him.  As presently advised on the material, it has been reasonably established that he was part of this agreement or arrangement; that is, there is some evidence which can be relied upon to establish a fraudulent scheme. 

The evidence of the possession of a 2 of Spades by Mr Shao would fall into a similar category, subject, of course, to the arguments of unfairness.  A deposit of $650,000 to the account of Wei Sahn Liu would be part of the circumstantial evidence.

The witness, Tootell, cannot swear the issue.  The betting behaviour if proved by the Crown on the part of each defendant might arguably, on its own, provide a sufficient circumstantial case to prove all elements of the charges, including dishonesty. Objections to questions falling outside this ruling may be made at trial.  A direction to the jury, that what was depicted on the video was a matter for their own assessment, will give sufficient protection to the defendants.

Evidence on the location of the playing card.

Police Powers and Responsibilities Act 2000. Sections 27 and 28 of the Act provides as follows:

"27 Searching persons without warrant

1. (1)
   A police officer who reasonably suspects any of the prescribed circumstances for searching a person without a warrant exist may, without a warrant, do any of the following:

1. (a)
   stop and detain a person;

2. (b)
   search the person and anything in the person's possession for anything relevant to the circumstances for which the person is detained.

2. (2)
   The police officer may seize all or part of a thing:

1. (a)
   that may provide evidence of the commission of an offence; or

2. (b)
   that the person intends to use to cause harm to himself, herself or someone else; or

3. (c)
   if section 28(b) applies, that is an antique firearm.

28. Prescribed circumstances for searching persons without warrant

The prescribed circumstances for searching a person without a warrant are as follows:

5. (e)
   the person is at a casino and may have contravened, or attempted to contravene, the Casino Control Act 1982, section 103 or 104. "

Section 103 of that Act relates to cheating.  The evidence of Detective Stewart is that when he searched Mr Shao, he found a folder.  Shortly after that, Mr Shao took flight.  At the watch-house, the card was located in the folder by Detective Cameron.  It is similar to a Conrad's playing card.  The Crown says it is part of the circumstances.  Those facts make it admissible per se.  The Crown says it is part of the circumstances of the case and that it is so admissible.

The defence submits that the Court should exclude such evidence under section 130 of the Evidence Act.  Mr Callaghan and Mr Boe submit that it would be unfair to admit the evidence of the findings of the 2 of Spades.  One argument pursued by Mr Boe is that the position of a card cannot be shown to have led to the defendant's dishonestly obtaining the monies.  Causation is a question of common sense.  The jury have to be satisfied beyond a reasonable doubt.  The card is one part of that evidence.  The manner in which it was believed to have been introduced is relevant to the question of dishonesty.  The unfairness aspect is of more consequence in this case.  It is accepted that that principle can apply to evidence other than admissions.  See Rozenes v Beljajev (1994) 126 ALR 481.  

UNFAIRNESS

The factual basis for finding that the evidence of the card would be unreliable and unfair as set out in paragraph 76, one to nine of Exhibit 1.  None of these by themselves would justify excluding the finding of the card on Mr Shao.  In the present case there were no admissions. 

Mr Z Liu shook his head in the negative when shown the evidence.  Detective Cameron said that this was a mistake on his part, that is, Cameron's part, in showing it to Mr Z Liu.  Even though none of the other defendants were asked to comment about the card, they would have been entitled to say nothing, which in this case, is what they did.  The gap in the video was explained away in part by a change in the tape.

The defence complained that the defendants were not shown the card, nor was the card shown on the video.  The evidence of Detectives Stewart and Cameron might be challenged on this point at trial in relation to what weight can be attached to this evidence.  But there is evidence at this stage supporting a finding that the card was found by Detective Cameron in a Watermark folder taken from Mr Shao by Detective Stewart.  The later finding of a cigarette lighter does not detract from the finding of a card.  It might point to slackness on the part of a police officer.

Mr Callaghan says that the defence are entitled to know who had the card.  There is some evidence that it belonged to Mr Shao.  On an application of this type, questions of credibility are not determined.  The defence rely upon the statement in Swaffield, Queen v Swaffield (1997) 192 CLR 159 at 197 - 198.

"78. Unreliability is an important aspect of the unfairness discretion but it is not exclusive.  As mentioned earlier, the purpose of that discretion is the protection of the rights and privileges of the accused.  Those rights include procedural rights.  There may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence.  Thus, in McDermott, where the accused did not admit his guilt, but admitted making admissions of guilt to others, it was hypothesised by Williams J that it might have been unfair to admit his statement if the persons to whom the admissions were made were not called as witnesses.  In R v Amad(151), Smith J rejected admissions which were voluntary and which the accused accepted were true because the manner in which he was questioned led to apparent inconsistencies which might be used to impair his credit as a witness.  And the significance of forensic disadvantage is to be seen in Foster where the inability of the accused to have his version of events corroborated was taken into account (152)."

There is really no impropriety on the part of police officers.  There may be some justified criticism of a lack of video at the airport and at the police station.  A gap in the video itself, but the explanations are sufficient to avoid a finding of impropriety.

The Crown submits that as the defendant Shao was a participant in a common purpose, acts done and words uttered by a participant in furtherance of that common purpose may be received against the other participants, whether or not those persons were present when the acts were done or the words uttered.  Queen v Tripodi opposite citation, page 6-7.

In Queen v Ahern (1988) 165 CLR 87 at 94-95, the joint judgment, the following passage appears after discussing the purpose of leading evidence of acts or declarations by others:

"That basis is provided in an appropriate case by the rule which states that when two or more persons are bound together in pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others."

When one looks at the circumstance of the case, particularly the video evidence, the possession by one of the accused of the card is something done in furtherance of the common purpose and therefore, receivable as evidence against all participants.  The Crown rely upon some of these facts as evidence of the common purpose:  five of the six defendants arrived from Hong Kong on the same plane on 29th April 2005;  Mr Abbas lived in Australia, all six defendants attended at the Casino on 16th, 17th of May;  they did not all associate with each other throughout the whole of that time;  all defendants were at the mini Baccarat table at the times relied upon for the conduct relating to the commission of the offence;  all accused accept Abbas were located at the airport after the offence and were booked on a flight from Sydney to Hong Kong with consecutive tickets, the use of the extra card, 2 of Spades, and other hand movements throughout the game, as referred to in the particulars.

I am not satisfied that the evidence relating to the 2 of Spades should be excluded on the grounds of unfairness. 
The weight to be given to such evidence is a matter for the jury.  Mr Green submitted that the importance of the card should not be underestimated.  The Crown attempt to say he says that a card was stolen and the shoe checking procedure was subverted.  Whether the card assumes the significance which the Crown hopes it will is a matter for the jury.  It was found on one of the accused and it is admissible against him and the others who the Crown allege are part of a pre-concerted joint enterprise.

Evidence of transactions involving co-accused.  For the reasons expressed above, the evidence of bank withdrawals, deposit and betting patterns are relevant to the alleged common purpose and are part of the circumstantial case.

Evidence of flight by Mr Shao

The Crown concedes that this evidence is admissible against Mr Shao only.  The fact that there may be an explanation for his flight consistent with innocence is something which can be the subject of an appropriate direction to a jury.

Application to Quash

The defendants seek to quash the indictment pursuant to section 596 of the Criminal Code, which provides as follows:

"The accused person may, before pleading, apply to the Court to quash the indictment on the ground that it is calculated to prejudice or embarrass the person in the person's defence to a charge, or that it might be formally defective." 

Reference was made to the summary of card incident 17th of May 2005, which for convenience, is marked Exhibit 7.  That summary shows that in relation to Mr Abbas, Z Liu and L Liu, the following amounts were won $47,763; $321,500 and $408,750 respectively.  There were losses by Shao and Zhao, with J Liu not betting. 

After deducting the losses, the Crown claim that the sum of $765,397.50 is the loss to the casino as a result of this common enterprise.  It is contended by the defence that each of the defendants who won, should be charged separately with those respective amounts.  It would follow then that the others, Messrs Shao, Zhao and Liu - J Liu, would only be persons who aided or abetted. 

It should be noted at this stage that section 569 sets out the manner in which a person who is charged as an aider under sections 7(b) or (c) may be indicted.  That person may be charged in the same indictment with a principal offender.  Also, section 568 subsection 3 specifically relates to an indictment for fraud.  That particular provision is as follows:

"In an indictment against a person for fraud, the person may be charged and proceeded against on one charge even though (a) any number of specific frauds of the same type has been committed, whether or not each specific act of fraud can be identified.  Or (b) the frauds have extended over any space or time.  Or (c)" - which may or may not be relevant in this particular case, says, "the 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, et cetera."

The Crown seeks to prove its case under section 7(1)a, b and c.  It may be that the evidence of the transactions establish that the defendants Abbas, Z Liu and L Liu, as named in the summary of the card incident, are the persons who got the money.  In a bank robbery, those who go into the bank obviously get the money physically.  The lookout does not get the money as such but he is just as liable under section 7.  The particulars provided by the Crown refer to betting transactions by each of the defendant, save for J Liu who, it appears, did not bet.

The defendants Shao, Zhao and J Liu, did not win any money and it seems that J Liu passed chips to others and it was alleged on this application as an additional particular, that he was attempting to distract staff at the casino during the game.  Mr Shao was also alleged to carry out actions not expected to be carried out whilst at a table gambling.

The defence rely upon the case, the Queen v Baynes (1989) 2 Qd R 431, 433.  That case involved independent acts of rape against the same woman.  The Court held that they should have been charged separately but on the same indictment.  They had been charged jointly on the one offence. 

The Queen v Baynes has been discussed in other cases.  In the Queen v Rhodes & Kissling (1999) QCA 055, the accused were convicted on separate counts in a single indictment of drug trafficking.  They were charged separately.  There were other charges. It was argued that they should have been charged on the one count for the drug trafficking.  McPherson AJ remarked that this was the reverse of the argument in Baynes.  See page 27, para 5.  His remarks are quite helpful.  He said that the particular acts of possessing or supplying when taken together amounted to a single business of trafficking carried out by both of them.

"Each of them became criminally responsible under section 7(1) of the Code where acts done by the other in pursuance of a conspiracy to carry on the drug trafficking business in tandem."

See page 27, para 2.

His Honour further remarked that once the accused were seen as members of a partnership or joint enterprise who were carrying on business, then the principles of partnership applied.  A similar comment can be made if some association and pre-concert subsists amongst the present defendants.  Some reasonable evidence has been adduced which satisfies me of that fact.  I refer to the particulars. 

In that event it is analogous to a partnership or conspiracy; see McPherson AJ, page 26 para 4.  His Honour held that they could be charged on the same count with jointly committing the same offence.  His Honour commented that Baynes was not a case where one of them was charged with helping the other to commit a crime.  That is the present position and so Baynes can be distinguished.

The present case is the reverse of Queen v Vest (1992) 2 Qd R 210.  In that case, it was held that where an indictment is presented against persons alleged to be parties to an offence under section 7 of the Code, there is no requirement that they be charged in one count.  Two accused have been charged on an indictment on two separate counts with the same offence of false pretences arising out of the same property, namely a motor vehicle.  Baynes case did not assist there.  Reference was made to the passage at 436 in Baynes:

"Separate counts should always be presented with separate consecutive and distinct offences committed by different persons are the subject of the indictment."

It did not allege a single offence committed by each accused as a principal offender under section 7.

In the present case, the conduct of the defendants relates to an allegation that they defrauded the casino of $765,397.  In the present case, it is an allegation of a single offence committed by each defendant as a principal offender under section 7.  Some of the defendants may have used their hands in a way to secrete a card, hide a movement, or distract a staff member, or be part of a hand which allowed another win in a situation where an extra card was being used. 

The amount which each of them wagered, or won, or lost, is part of the evidence but not conclusive as to the respect of criminality or lack thereof.  The facts supporting the charge resulted from the conduct of six persons who each is alleged to have assisted in defrauding the casino of the amount.  The remarks of Jacobs J in Mackay v the Queen (1977) 136 CLR 465 apply here.

"It remains true that a single charge must relate to an act or series of acts constituting one offence and not to a multiplicity of independent acts."

The acts of the defendants in the present case were not independent of each other.  On the Crown case if accepted they conspired or agreed on a criminal joint enterprise to defraud the casino.  As Thomas J said in Baynes commenting on the remarks of Jacobs J:

"His Honour recognised that it might be valid in particular circumstances to treat a series of rapes as being so inter-dependent as to constitute only one offences, just as their Lordships in Merriman had held a succession of stabbings to be capable of constituting one offence of wounding."

Those comments apply with even more force in the present case where the conduct alleged was not just one transaction but a series of bets during the evening of the 17th of May 2005, leading to a win of some $765,397.   The Crown alleges the defendants are to be held criminally responsible under section 7 of the Code. 

As observed by McPherson J in the Queen v Addison (2000) QCA 53 para 15, in ordering a retrial he referred to the decisions of Thomas J and Williams J in R v Baynes who confirmed that an accused on a rape charge may have been convicted as being either the primary or secondary offender.  In Addison it was alleged that the appellant and his co-accused had entered a dwelling, robbed the owners and raped the complainant. 

The appellant admitted the other charges but denied any rape had occurred.  There was no evidence to identify the appellant as the person who raped the complainant.  The remarks of Thomas J in 434 in Baynes as referred to by McPherson J in the Queen v Addison were: 

"Even if the jury is unable to say whether the accused in question was the principal or the aider, it may convict if the evidence shows he may have been one or the other.  By charging the defendants on one count, the indictment must be read as charging them with having committed that offence together, whether as principal or secondary offender and not as having perpetrated it separately or severally."

See R v K ex parte Attorney General (2002) QCA 260 para 5, referring to the Queen v Baynes and section 569 of the Code. 

The application to quash the indictment under section 596 is refused.