R v Ngo[2009] QSC 212

SUPREME COURT OF QUEENSLAND

1. MULLINS J: The applicant applies for the stay of the indictment presented against him in this court.  If the stay is refused, the applicant applies for the exclusion of the evidence of five prosecution witnesses (Chiu, Wu, Chen, Hu and Lin) (the five prosecution witnesses) that relates to alleged conversations between the applicant and those witnesses after the applicant had been charged on 11 November 2004.

2. For the purpose of the application, the applicant was prepared to proceed on the basis that the prosecution case was as disclosed in the statements of the prosecution witnesses and the depositions.

3. The charge on the indictment brought pursuant to s 135.4(3) of the Criminal Code (Cth) (the Code) is that between 24 May 2001 and 11 November 2004 at Brisbane the applicant and two named persons conspired with each other with the intention of dishonestly causing a loss to the Commonwealth.  I will refer to the two named persons as “the alleged co-conspirators”.

Summary of the prosecution case against the applicant

4. The prosecution case is that the alleged co-conspirators conducted duty free businesses and falsified invoices in respect of their businesses, so that they did not disclose that tobacco products were sold by them to the applicant with the consequence that, over a period of about three and one-half years, tobacco products entered the domestic market without payment of excise or custom duty. There is another charge on the same indictment involving the alleged co-conspirators and another alleged distributor. The prosecution alleges that the total amount of duty avoided through the sales of tobacco products to the applicant and the other distributor is in the order of $13m.

5. The prosecution case against the applicant is circumstantial. The prosecution accepts that it must prove that the applicant knew that the duty was not being paid by the alleged co-conspirators. The prosecution case involves evidence of regular delivery of tobacco products in a basement car park to the applicant, payment for these products by the applicant in cash, that neither the applicant nor the vendors kept proper business records and that there was no compliance by the applicant with his taxation obligations. The prosecution relies on evidence of the close association between the applicant and the alleged co-conspirators prior to the execution of the search warrants at the premises of the duty free businesses, the alleged co-conspirators and the applicant. The prosecution relies on evidence that after the execution of the search warrants one of the alleged co-conspirators, uncharacteristically, refused to see the applicant. There is also evidence from four of the five prosecution witnesses who were employees of the alleged co-conspirators about approaches made to them by the applicant after the execution of the search warrants which the prosecution relies on either as evidence of the existence of the conspiracy or as implicating the applicant in the conspiracy. The prosecution also relies on the evidence of the applicant’s activity in selling tobacco products and that a search of his residence revealed approximately $200,000 in cash with a further sum of $220,000 located in a bank safety deposit book, a large quantity of tobacco products that could be traced from the duty free businesses and evidence of removal of duty free labels from tobacco products.

6. It is relevant to briefly set out the parts of the evidence from the five prosecution witnesses. Wu gave evidence about he and Lin meeting the applicant at Sunnybank. Wu said that, at that meeting, the applicant mentioned to them that he was “sending a message across” from one of the alleged co-conspirators saying that alleged co-conspirator wanted them “to leave the country” and “go back to Taiwan”. Chen could remember meeting with the applicant at the Sunnybank Rugby Club after the search warrants were executed. He remembered that Wu was there. He was not sure Lin was there. He agreed that they were talking about what they were all going to do after the raids and Chen stated, in relation to the applicant, that “he was showing some care for us”. Lin said that after the search warrants were executed he met with the applicant three times at Sunnybank. Lin said that the applicant said that he was passing a message from one of the alleged co-conspirators that the alleged co-conspirators wanted them to leave Australia. Lin also said that the applicant said that one of the alleged co-conspirators “has lots of money, he’s very wealthy and he will be able to have the best lawyers and we will probably have a problem ourselves”. Lin said that he went with Wu to the meetings at Sunnybank. Hu is the wife of the prosecution witness Chen. They lived across the road from the applicant. After the search warrants were executed, Hu said that the applicant came to visit them a couple of times and told them to escape quickly to Taiwan. There is no evidence given by Chiu at the committal that falls into the category of evidence that is sought to be excluded by the applicant.

History of the proceedings against the applicant

7. The applicant was originally charged on 11 November 2004 with an offence under s 134.1(1) of the Code, that between 1 May 2004 and 11 November 2004 at Brisbane the applicant, by a deception, dishonestly obtained property from another person and the other person is a Commonwealth entity.  A committal hearing in relation to this charge was held on 4 October 2005.  At the commencement of the committal, the prosecutor conceded that the Crown could not prove all the elements of the offence under s 134.1 of the Code in respect of the applicant.  The prosecutor indicated that at the end of the committal he would invite the Magistrate to commit the applicant on two charges under s 135.1(5) of the Code and he handed up drafts of those charges to the Magistrate. 

8. The committal hearing involving charges against the applicant and another defendant was completed within one day. Statements were tendered under s 110A of the Justices Act 1886 and oral evidence was given by two witnesses only. Submissions were made on behalf of the applicant at this committal to the effect that the prosecution could not prove that the applicant knew or believed that there was a substantial risk of loss occurring to a Commonwealth entity, or could not exclude mistake of fact.  The essence of these submissions was that the applicant paid at least $55 for each carton of cigarettes which exceeded the amount of duty payable and there was no proof that the applicant knew the duty free businesses did not pass on the duty to either the Customs Office or the Commissioner of Taxation.  The charges against the applicant (which I infer covered both the original offence with which he was charged and the proposed substitute charges under s 135.1(5) of the Code) were formally dismissed by the Magistrate and the applicant was discharged. 

9. The Commonwealth recharged the applicant in January 2007 with a conspiracy offence. At the commencement of the committal on 3 September 2007 the conspiracy charge was amended, so that the commencement date of the period relating to the conspiracy was 24 May 2001. The charge was brought under s 135.4(5) of the Code.  It alleged that between 24 May 2001 and 11 November 2004 at Brisbane the applicant, the alleged co-conspirators and another person named Truong conspired with each other and others to dishonestly cause a risk of loss to the Commonwealth, believing that there was a substantial risk of the loss occurring.  This committal hearing which related to the charges against the applicant and those with whom he was charged lasted for 21 days on various dates between 3 September 2007 and 26 June 2008.  A number of statements were tendered under s 110A of the Justices Act 1886. There was oral evidence from many witnesses including the five prosecution witnesses.  Although the police had interviewed the five prosecution witnesses and obtained some statements from them prior to the first committal, further statements were obtained from them after the first committal.  There were also some differences between the early statements obtained from some of these witnesses and the evidence that was given at the second committal.  The difference in the evidence relied on by the prosecution against the applicant at the second committal from that which had been relied on at the first committal was largely due to the evidence of the five prosecution witnesses. (The evidence of those witnesses is much more extensive than those parts that the applicant seeks to have excluded on this application. By way of example, some of the witnesses gave evidence of observing regular meetings between the applicant and one of the alleged co-conspirators and that the applicant would collect tobacco products from the duty free businesses once or twice per week.)

10. At the conclusion of this committal hearing the applicant argued that there was no case to answer or, if there were a case to answer, that it was not in the interests of justice that he be committed on the charge under s 135.4(5) of the Code, after it was found that he had no case to answer at the conclusion of the first committal.  The Magistrate was referred by the applicant’s counsel in forceful terms to s 135.4(13) of the Code and the power of the court to dismiss a charge of an offence against s 135.4, if the court thought that the interests of justice required the court to do so.

11. After hearing the submissions on behalf of the applicant, the Magistrate stated that he was satisfied the evidence was sufficient to put the applicant on trial for the indictable offence that was before the Magistrates Court and committed the applicant for trial.

What is the effect of the failure of the Magistrate to give reasons for rejection of application under s 135.4(13) of the Code

12. The complaint of the applicant that was pursued on this application was expressed in terms of the Magistrate’s failure to rule on the application that was made at the conclusion of the second committal based on s 135.4(13) of the Code.  The applicant did not make a new application to this Court under s 135.4(13) or otherwise request the court to exercise the power conferred by s 135.4(13).

13. It was submitted that the committal was defective, because the Magistrate did not give any ruling at the conclusion of the second committal on whether the charge should be dismissed under s 135.4(13) of the Code and therefore failed to exercise jurisdiction.    

14. During the hearing of this application I expressed the opinion that it was implicit in the decision of the Magistrate to commit the applicant for trial that he rejected the applicant’s argument based on s 135.4(13). It was then submitted by the applicant that there was a failure to give reasons for that implicit decision which should also be characterised as a failure to exercise jurisdiction. The applicant relied on two English circuit case decisions where in each case an indictment charging conspiracy was quashed because of defects in the committal hearing. Those decisions turned, however, on the English procedure for committal which gave a significance to committal which differs from that which applies in this jurisdiction: Grassby v The Queen (1989) 168 CLR 1, 12.

15. The presentation of the indictment in this Court has overtaken the committal proceeding. The broad purpose of s 590AA of the Criminal Code (Qld) is to enable either the prosecution or the defendant, where an indictment has been presented, to obtain a direction or ruling as to the conduct of the trial or any pre-trial hearing: R v Gesa and Nona, ex parte Attorney-General [2001] 2 Qd R 72, 75 [14].  Although the procedure can be used to quash or stay the indictment in appropriate cases, it is not a procedure for reviewing the committal process.  As a result of the definition of “order” in s 4 of the Justices Act 1886, there is no appeal from a decision of a Magistrate to commit a person for trial of an indictable offence.  As the charge against the applicant is a Commonwealth offence, s 9A of the Administrative Decisions (Judicial Review) Act 1977 (Cth) limits the jurisdiction for judicial review of the committal decision. 

16. It is not unusual for deficiencies in the committal process to be addressed by pre-trial hearings. This frequently occurs where the prosecution proposes to rely on a witness whose statement was not available at the committal or other evidence that was not available at the committal. The pre-trial hearing may be used to give the defendant an opportunity to test late evidence.

17. In light of the opportunity that the applicant had at the second committal hearing to test the evidence relied on by the prosecution and to make submissions about its sufficiency, the applicant has had the benefit given to a defendant by the committal process. Any complaint now based on the claim that the Magistrate did not exercise jurisdiction under s 135.4(13) of the Code is theoretical, rather than real, as the Magistrate was satisfied that the applicant should be committed for trial.  If there were a case for having the charge dismissed under that provision, it can still be pursued in this Court.  The proceeding in this court on the indictment is not tainted by any failure by the Magistrate to give reasons expressly dealing with the submissions directed to s 135.4 (13) of the Code. Any such failure to give reasons should not result in a stay of the indictment in this court.

Whether discharge of the applicant at the first committal justifies stay of the indictment

18. The applicant’s submissions in support of the stay were based on the claim that the case against the applicant is not appreciably different to the case that was put by the prosecution at the first committal and that permitting the charge on which the applicant was committed for trial at the second committal hearing to proceed would amount to a “scandal of conflicting decisions”: Rogers v The Queen (1994) 181 CLR 251, 280.   The applicant relied on the approach that was taken in each of the following cases to stay a criminal proceeding:  DPP v A (2001) 117 A Crim R 551 (DPP v A),  R v Garth [2008] VSC 210 (Garth) and Salmat Document Management Solutions Pty Ltd v The Queen (2006) 199 FLR 46 (Salmat).   

19. It does not give sufficient weight to the entire evidence of the five prosecution witnesses to claim that the case against the applicant at the second committal was “not appreciably different” to that at the first committal. In addition, the charge at the first committal related to a period that reflected the period of surveillance that authorities had undertaken before the execution of the search warrants. The second committal was concerned with a period for the charge that was much longer and was supported by the observations of the five prosecution witnesses of contact and dealings between the applicant and the alleged co-conspirators.

20. The applicant also relied on the fact that he was discharged at the first committal in relation to a substantive offence of obtaining property by deception, and the second committal proceeded in respect of a charge of conspiracy and it is a conspiracy charge that is the subject of the indictment in this court.

21. The applicant referred to the observation in the joint judgment in The Queen v Hoar (1981) 148 CLR 32, 38 (Hoar):

“Indeed the Crown has adopted a course of proceeding which is calculated to cause the maximum amount of prejudice to the defendants and the greatest difficulty to the courts in determining what is a proper penalty.  If the Crown’s belief was that it had effective charges for the substantive offence then it should have proceeded with those charges and sought on conviction an order for forfeiture which the Court would have been authorised to make.  If there had been some real basis for doubting that the offence had been committed the Crown may perhaps have been justified in alleging an attempt or a conspiracy.  Generally speaking, it is undesirable that conspiracy should be charged when a substantive offence has been committed and there is a sufficient and effective charge that this offence has been committed.” 

22. In that case, Hoar was convicted on a charge of conspiracy with others to commit an offence against a provision in the Northern Territory fisheries legislation. After the conviction for conspiracy, there were pending against Hoar charges for summary and substantive offences under the fishing legislation based on the same transactions as those involved in the offence of conspiracy. It was in that context that the observations set out above were made in the joint judgment.

23. This criticism of the use of a conspiracy charge when a substantive charge could have been used has been one of the reasons for including in the Code provisions such as s 135.4(13).  In relation to the mirror provision in s 11.5(6) of the Code the following statement was made in the Explanatory Memorandum for the Criminal Code Bill 1994:

“Additionally proposed subsection 11.5(6) allows a court to dismiss the conspiracy count if it considers that the interests of justice require it to do so.  The most likely use of this provision will arise when the substantive offence could have been used, a criticism repeatedly voiced by the courts (see, for example, Hoar (1981) 148 CLR 32.”

24. The prosecution argues that there is a proper place for a conspiracy charge where the focus of the charge is not the individual transactions which could theoretically be the subject of individual substantive charges, but “an ongoing organisational framework for general activity”: R v Shepherd (1988) 37 A Crim R 303, 309-310.  The prosecution can justify the choice of the charge of conspiracy against the applicant in this matter, as the focus of the case against the applicant is the repetitive and like nature of the transactions between the applicant and the alleged co-conspirators over a number of years.  The observation in the joint judgment in Hoar is a guide and not a statement of absolute application.   

25. The three cases relied on by the applicant are in marked contrast to the position of the applicant. DPP v A concerned a juvenile A who was jointly charged with another juvenile G.  When their joint trial was due to commence, it was adjourned because of late statements provided by the prosecution, but a voir dire in respect of the admissibility of A’s interview with the police was held and that interview was excluded.  The Crown then withdrew the complaint against A.  Subsequently G signed a statement implicating A.  The judge ordered a permanent stay of the prosecution against A.  That decision was upheld and was based on a consideration that the order in which the events had occurred was due to the prosecution’s decision to proceed with a joint trial in the first instance and the timeframe appropriate for prosecuting a juvenile offender.

26. In Garth, the defendant was tried for three counts of rape with alternative counts of sexual penetration of a child under 16 and one count of committing an indecent act with the child.  The jury acquitted the defendant of the three counts of rape, but could not agree on verdicts for the remaining charges.  The prosecution sought to proceed to trial again for those counts on which the jury had not agreed.  The trial court stayed the further prosecution of the three counts of sexual penetration as an abuse of process and that was upheld.  At the first trial the defence had been that the events did not occur and that the complainant’s evidence was a fabrication.  The rape and sexual penetration offences had a common element of requiring proof of sexual penetration and that had therefore been a fundamental issue at the first trial.  It was held that to allow the second trial to proceed would leave open the possibility of inconsistent verdicts and a stay was therefore justifiable.

27. In Salmat, the defendants Salmat (a company) and one of its employees Ward were charged with fraud offences against Australia Post in Western Australia.  Ward, in his capacity as an employee of Salmat, had previously been tried in Victoria for being knowingly concerned in a fraud committed against Australia Post in Victoria.  Two of the witnesses against Ward in the Victorian trial were also witnesses against Ward and Salmat in the Western Australian prosecution.  Because of the failure of the prosecution in Victoria to deliver a large number of documents to the defence, Ward was acquitted by direction in the Victorian trial.  A stay was sought in respect of the Western Australian charges against Salmat and Ward on the basis of double jeopardy.  Although McKechnie J concluded that the principle of double jeopardy did not apply to the Western Australian prosecution, he also concluded that Ward would be deprived of the full effect of the Victorian acquittal, if the Western Australian proceeding continued.  This was on the basis that it would be impossible for an explanation to be given to a jury on how they should treat the evidence of the two witnesses (who had also given evidence in the Victorian trial) without impugning the acquittal in Victoria.

28. These three cases are illustrative of circumstances where a stay of indictment may be ordered by the court. None of the features of these cases translates to the circumstances of the two committals against the applicant. The discharge of the applicant at the first committal does not have the significance of an acquittal or discharge after trial.  

29. The applicant is not making any allegation against the prosecution of delay in pursuing the conspiracy charge against the applicant.

30. The power to stay an indictment is exercised by the Court to prevent abuse of the Court’s processes or to take appropriate action to prevent injustice or unfairness and it is reserved for exceptional cases: Jago v District Court (NSW) (1989) 168 CLR 23, 25-26, 60, 77.  The factors relied upon by the applicant (to the extent they are established), either individually or cumulatively, do not amount to any abuse of the Court’s process or injustice or unfairness to the applicant.  This is not a case where the applicant has even reached the threshold where the court would be required to consider whether to exercise the jurisdiction to stay the indictment.

Whether evidence of five prosecution witnesses should be excluded

31. The five prosecution witnesses were themselves involved in the activities of the alleged co-conspirators that resulted in the charge of conspiracy against the alleged co-conspirators. Some of these witnesses had changed some of their evidence by the time they gave evidence at the committal from what they originally informed the police. On an application of this nature where the credibility of the witnesses will be in issue, it is not for the court to determine what parts of the evidence of these prosecution witnesses will be accepted by a jury. The application to exclude parts of their evidence needs to be considered in the light of the case which the prosecution can make, if the evidence that is favourable to the prosecution case is accepted at the trial.

32. The applicant relied on two authorities to justify excluding the parts of the evidence of the five prosecution witnesses about their conversations with the applicant after the execution of the search warrants. The first authority is the observation by Andrews CJ in R v Williams [1987] 2 Qd R 777, 780-781:

“Where however, nothing in the surrounding circumstances is shown which could reasonably be thought to compel a denial by a person interrogated or where he gives an answer which is ambiguous, neutral, equivocal, or otherwise not plainly inconsistent with a consciousness of innocence it ought not to be left to the jury with a direction to the effect that it is left to them as a fact for their consideration and thus that they might regard it as probative and press it into service of the Crown.

As a rule it would be excluded because it is irrelevant.  If, however, it is only by some tenuous reasoning as to its relevance that a ruling that it is technically admissible might be made, which could happen in come circumstances, its sheer lack of weight would cry out for its exclusion in the proper exercise of a judicial discretion.”

33. The other authority R v Familic (1994) 75 A Crim 229, 235 concerned statements made by the defendant to investigating police officers which could not reasonably be understood as unequivocal admissions of guilt and therefore were ruled inadmissible on that basis.

34. The prosecution relies on the conversations between the applicant and four of the five prosecution witnesses after the execution of the search warrants as part of the circumstantial case against the applicant to show that he was, in fact, a participant in the conspiracy and that the conspiracy existed and not as admissions of guilt or consciousness of guilt. The proposed evidence is therefore relevant and is not able to be excluded on the grounds put forward by the applicant.

Conclusion

35. It follows that the grounds set out in the application that was filed to obtain these pre-trial rulings do not support staying the indictment, and the application to stay the indictment must be dismissed. The application to exclude those parts of the evidence of Chiu, Wu, Chen, Hu and Lin that are identified in the application must also be dismissed.