Re R v William Suen [1987] FCA 179 (2 June 1987)

FEDERAL COURT OF AUSTRALIA

Re: THE QUEEN
And: WILLIAM SUEN
No. ACT G21 of 1986
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Kelly(1), Neaves(2) and Spender(3) JJ.

CATCHWORDS

Criminal Law - Appeal - Possession of heroin for purpose of supply - Poisons and Narcotic Drugs Ordinance 1978 (A.C.T.) - Deemed possession for purpose of supply (s.4(4)) - Evidence of possession by another person of diluted heroin from same batch as that in possession of accused - Whether evidence admissible to show purpose for which accused had heroin in possession - Whether verdict unsafe - Failure of prosecution to call that other person - Whether trial rendered unsatisfactory thereby - Whether sentence imposed adequate.

Bell v. R. (1985) 63 ALR 433

Peacock v. R. [1911] HCA 66; (1911) 13 CLR 619

Chamberlain v. R. [1984] HCA 7; (1983-4) 153 CLR 521

R. v. Apostilides [1984] HCA 38; (1984) 154 CLR 563

R. v. Tait and Bartley (1979) 24 ALR 473

HEARING

CANBERRA
2:6:1987

Counsel for the Appellant: Mr R.C. Webster with Mr G.C. Lalor

Solicitors for the Appellant: Director of Public Prosecutions

Counsel for the Respondent: Mr H.D. Palmer

Solicitors for the Respondent: Legal Aid.

ORDER

The appeal be allowed.

There be substituted for the sentence of 8 years imprisonment to date from 9 April 1986 with a non-parole period of 4 years commencing from that date a sentence of 13 years imprisonment to date from 9 April 1986.

A non-parole period expiring on 8 April 1993 be fixed.

The cross-appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

Section 4(3) of the Poisons and Narcotic Drugs Ordinance 1978 of the Australian Capital Territory (the Ordinance) provides that a person who has a controlled substance in his possession for the purpose of supplying it to another person or to other persons is guilty of an offence. One such controlled substance is heroin. If a person commits the offence in relation to that substance he or she becomes liable, by s.4(6) of the Ordinance, to imprisonment for a term not exceeding 25 years or a fine not exceeding $100,000 or both such imprisonment and fine.

2. On 7 April 1986 the respondent, William Suen, was charged on indictment before the Supreme Court of the Australian Capital Territory that on 9 July 1985 at Canberra he had heroin in his possession for the purpose of supplying it to another person or to other persons. He pleaded not guilty but after a trial which extended into the fourth day was found guilty. On 17 April 1986 he was sentenced to imprisonment for 8 years, a non-parole period of 4 years being fixed. Each of those periods was fixed to commence on 9 April 1986.

3. The Crown appealed against the adequacy of the sentence alleging in its grounds of appeal that the learned trial Judge erred in imposing sentence in that:-

(a) he failed to give due regard to the seriousness of
the offence and the facts and circumstances
surrounding the commission of the offence;

(b) he failed to incorporate adequate deterrent and
retributive impact in the sentence imposed;

(c) the sentence imposed failed to properly reflect
the objects of s.4 of the Ordinance;

(d) the sentence imposed was manifestly inadequate;
and

(e) there was no legislative basis for the backdating
of the non-parole period.

4. The respondent cross-appealed. By his grounds of appeal he alleged that the learned trial Judge erred in:-

(1) admitting evidence of the movements of and of the
possession of heroin by one, Harry Malavetas;

(2) directing the jury as to the use they could make
of the evidence relating to the said Harry
Malavetas;

(3) failing to direct the jury to differentiate
between the respondent's failure to call one Simon
Ho and the Crown's failure to call the said Harry
Malavetas;

(4) directing the jury on the question of the
respondent's character.

5. The respondent further alleged that in the circumstances the verdict of guilty was unsafe and unsatisfactory. At the hearing the ground relating to character was abandoned.

6. I have had the advantage of reading the reasons for judgment in draft of Spender J. in respect of the cross-appeal. I agree with those reasons and have nothing to add to them. I would order, therefore, that the cross-appeal be dismissed.

7. The Crown led evidence that eight folded pieces of silver foil containing 7.7 grams of 27% heroin, 2.1 grams by weight of that substance, were found in a blue jacket which the respondent admitted to wearing sometimes. Evidence was also led that 198.4 grams of 65% heroin, 129 grams by weight (Exhibit A), was found in a safe to which the respondent had a key. The balance of 35% which was not heroin was made up of monoacetyl morphine and acetyl codeine, the hydrochloric acid used to make hydrochloride salts of those three compounds and minor amounts of fatty acids and other inorganic materials used in the manufacturing process. A question and answer summarised the analyst's opinion as to the purity of the substance found:-

"So the 35% impurity comes from its
manufacture?---Yes."

8. The evidence enabled the inference that all the heroin referred to above was derived from the same batch, i.e., that at the very minimum it all came from the same manufactured batch, to be drawn.

9. Section 4(4) of the Ordinance reads:-

"In proceedings for an offence against
sub-section (3) a person who has in his
possession a quantity of a controlled
substance, being a quantity that exceeds the
prescribed traffickable quantity for that
substance, shall, unless the contrary is
proved or the person proves that he had
lawful authority to have the substance in his
possession, be taken to have the substance in
his possession for the purposes of supplying
the substance to another person or to other
persons."

10. The prescribed traffickable quantity of heroin is 2 grams. The jury might therefore have been satisfied that the respondent had in his possession two quantities of heroin which exceeded the prescribed traffickable quantity, the one weighing 129 grams, the other weighing 2.1 grams and so had them for the purpose of supply.

11. The principles applicable to the appeal against sentence are set out in R. v. Tait and Bartley (1979) 24 ALR 473, a decision of the Full Court of this Court, at pp 475-7.

12. When passing sentence the learned trial Judge expressed himself as satisfied beyond reasonable doubt that the respondent was in possession both of the heroin in the safe and of the heroin in the jacket pocket. No evidence of lawful authority for its possession was offered. His Honour considered that that possession for the purpose of supply to another person disclosed a most serious case of possession for that purpose. He considered it to be most important that a large quantity of heroin was found. He accepted that heroin is not manufactured in the Australian Capital Territory and that the cost of purchasing a similar quantity of heroin from sources outside the Australian Capital Territory, notably Sydney, was about $30,000. He was satisfied that when reduced in purity by about one half and sold in one gram lots in the Australian Capital Territory the quantity was likely to bring a price of approximately $200,000 and that when further reduced in purity or, to use the terminology of the trade, cut and eventually sold to the addict at the end of the supply chain in deals of one-tenth of a gram each at a strength of about 12% pure heroin, the quantity seized was likely to realise something in the region of $400,000.

13. His Honour observed that there was no suggestion that the respondent was an addict himself or a user of heroin and that no lenience which might be extended to one who trafficks in heroin as part and parcel of his addiction to the drug could be extended to him on that account. He concluded that the facts as disclosed permitted of no conclusion other than that the heroin was held for purely commercial purposes. He noted that the evidence showed that there was glucose powder and foil for the purpose of packaging found quite close to where the heroin itself was located.

14. He took into account that no contrition had been displayed by the respondent, that the finding of guilt followed a trial and that the respondent gave no assistance whatever to the police in assisting them to determine the source of the heroin. His Honour did not consider it to be of much importance whether the respondent should be regarded as a retailer or wholesaler. He also took into account in favour of the respondent that he was not to be convicted and sentenced for an actual supply or on the basis that the premises where the heroin was found had been shown to be a distribution centre operating under the mere cloak of a grocery store.

15. He accepted that the amount of heroin mixture found in the possession of the respondent was by far the largest amount ever seized in the Australian Capital Territory in one lot and that in fact it exceeded the total amount seized for the whole of the years 1983 and 1984. He accepted that at 65% the quality of the mixture, by which he obviously meant Exhibit A, was extraordinarily high. He accepted that the respondent's modest lifestyle was such that he could not be shown to have profited from criminal activity in the past to any significant extent. He had regard to what he described as the unsophisticated nature of the way in which the heroin was packaged and kept on the premises. This he considered remarkable, having regard to the large amount in question and the hazards that its possessor faced in keeping it on the premises. In the end he expressed himself as not satisfied that the respondent acted alone or that he was the effective organizer of other persons in what was to be a distribution of an unprecedentedly large quantity of heroin in the Canberra area.

16. His Honour had regard to matters personal to the respondent.

17. I am unable to see that his Honour erred in any of the findings of fact just referred to. All were based directly on the evidence or were inferences which might properly be drawn from that evidence.

18. Just before he passed sentence, his Honour said:-

"The head sentence which I am about to
impose, together with the minimum term to be
served, will reflect only to a slight degree
the offender's good previous character. The
evils of the heroin trade are well recognized
as is the need for offences connected with
trafficking in heroin to reflect the severity
with which those offences will be met by the
criminal justice system."

19. For the appeal to succeed it is necessary for the Crown to show therefore that the sentence itself was so inadequate as to manifest error of itself. It is clear that his Honour took into account all the salient features of the evidence. What the Crown submits is that he must have failed to take adequately into account two of those features. The first was the sheer quantity of heroin found and its value on what may be described as a wholesale basis and final retail basis. The second was that the purity of the heroin was such as to indicate that it came from a source that was very close to the top of the supply chain and, in Australia, possibly the very top of the supply chain after importation from South East Asia.

20. The legislature regards the offence of having heroin in possession for the purpose of supply as one deserving in the worst case of heavy penalty. (Section 4(6) of the Ordinance.)

21. It is true that the penalty imposed was, according to the evidence, the highest ever imposed in the Australian Capital Territory in respect of possession of heroin and ordinarily one would take that into account in assessing whether the learned trial Judge had erred in principle in imposing the sentence which he did.

22. I do not think that the fact that some other court might, for example, have imposed a sentence of ten years would warrant the setting aside of the sentence in question. However, I think that the learned trial Judge did in the event fail to take sufficiently into account the quantity and purity of the heroin seized and the fact that its possession must have been close to the top of the chain of supply and that therefore the respondent must have been close to those responsible for its importation into Australia.

23. In my opinion an appropriate sentence for the offence would have been not less than 12 years and not more than 17 years. If that range of sentence be proper, it follows, I think, that the penalty imposed by the learned trial Judge was so light as to demonstrate error.

24. In my opinion the sentence imposed ought to be set aside and there should be substituted for it a sentence of 13 years imprisonment to date from 9 April 1986. As to the non-parole period it is true that the learned trial Judge made a slight technical error but what he meant to do is clear and I think his general intention ought to be achieved by the appropriate non-parole period having regard to the sentence which I think proper. I would fix a non-parole period to expire on 8 April 1993.

In my opinion, the appeal by William Suen against his conviction for an offence against s.4(3) of the Poisons and Narcotic Drugs Ordinance 1978 (A.C.T.) of having a quantity of heroin in his possession for the purpose of supplying it to another person or other persons should be dismissed. I am content to rest my opinion upon the reasons for that conclusion set out in the judgment prepared by Spender J. which I have had the benefit of reading. I do not find it necessary to add any observations of my own.

2. I turn now to the appeal by the Crown against the adequacy of the sentence of 8 years' imprisonment imposed in respect of the offence.

3. The Crown did not suggest that the learned trial judge erred in any of his findings of fact or that he failed to take account of any salient feature revealed by the evidence before him. It was, however, submitted that the sentence imposed is so inadequate as to manifest error.

4. The heroin in respect of which the accused was charged was found in a wall safe in a room used as an office in a grocery store known as Wing Fat Chinese Grocery Store at Townshend Street, Phillip in the Australian Capital Territory and in a jacket hanging in the same room. Other relevant items were found in the same room, including an opened box of "Glucodin", an opened box of "Sweetaddin", "Tudor" brand press seal envelopes, a silver spoon and rolls of aluminium foil.

5. The quantity of the substance found in the safe was 198.4 grams. On analysis, it was found to contain 65%, or 129 grams by weight, of pure heroin, the remaining 35% being manufacturing impurities only. The quantity of mixture in the eight foil packages found in the jacket was 7.7 grams which, on analysis, was shown to contain 2.1 grams of heroin. Those facts, alone, demonstrate the general nature of the activity in which the accused was involved. The heroin in the possession of the accused was clearly held purely for commercial purposes.

6. The jury was satisfied beyond reasonable doubt that the accused was in possession of the heroin found in the safe notwithstanding his evidence that he did not know of its presence on the premises and that it must have been placed in the safe by another man to whom he had given a key. One of the most significant pieces of evidence as to the accused's knowledge of the presence of heroin on the premises was the fact that his fingerprints were found on one of the pieces of foil containing heroin found in the jacket. His fingerprints were also on two of the pieces of foil found in a desk drawer and on an opened roll of foil found on the top of a metal locker and obviously used for packaging the drug.

7. The facts before the Supreme Court disclosed, as the trial judge observed, a most serious case of possession for the purpose of supply to another person. In the absence of any mitigating factors - of which there were none - and notwithstanding that the accused had no previous convictions (a matter of limited significance in relation to drug offences), the circumstances called for the imposition of a long term of imprisonment. The accused displayed no contrition and gave no assistance whatsoever to the police in their endeavours to trace the source of the heroin in his possession.

8. Conscious as I am of the proper role of an appellate court in considering whether to interfere with a sentence imposed by a trial judge who has not erred in any of his findings of fact, I am nonetheless of the opinion that, in the circumstances of this case, the trial judge failed to reflect adequately in the sentence he imposed the gravity of the offence. The appeal should, in my view, be allowed. I agree in the orders proposed by Kelly J.

On 10 April 1986, William Suen ('Suen') was convicted by a jury in the Supreme Court of the Australian Capital Territory of an offence under s.4(3) of the Poisons and Narcotic Drugs Ordinance 1978 of the Australian Capital Territory that, on 9 July 1985 in Canberra, he had heroin in his possession for the purpose of supplying it to another person or to other persons. By s.4(6) of the Ordinance, a person who has heroin in his possession for the purpose of supplying it to another person or to other persons, is liable to imprisonment for a term not exceeding 25 years or to a fine not exceeding $100,000.00, or both.

2. On 17 April 1986, Suen was sentenced to imprisonment for 8 years with a non-parole period of 4 years, both periods being fixed to commence on 9 April 1986.

3. The Crown appealed against the adequacy of the sentence, alleging that it was manifestly inadequate. It alleged that the learned trial judge failed to give due regard to the seriousness of the offence and the facts and circumstances surrounding the commission of it; failed to incorporate adequate deterrent and retributive impact in the sentence imposed and failed properly to reflect the objects of s.4 of the Ordinance. It also complained that there was no legislative basis for the backdating of the non-parole period.

4. There was a cross-appeal by Suen against his conviction. The appeal against conviction was based on the grounds that the learned trial judge had admitted evidence of the movements of and possession of heroin by one Harry Malavetas; that the learned trial judge had erred in directing the jury as to the use they could make of that evidence; and had failed to direct the jury to differentiate between the respondent's failure to call one Simon Ho and the Crown's failure to call the said Harry Malavetas. It was further suggested that the verdict of guilty by the jury was unsafe and unsatisfactory.

5. Section 4(4) of the Ordinance provides that a person who has in his possession a quantity in excess of the prescribed traffickable quantity of that substance shall, unless the contrary is proved or the person proves that he has lawful authority to have the substance in his possession, be taken to have the substance in his possession for the purpose of supplying the substance to another person or to other persons. For heroin, the prescribed traffickable quantity is 2 gms.

6. It is convenient to deal first with the cross-appeal of Suen.

7. The cross-appellant, in conjunction with another person, conducted a grocery store known as the Wing Fat Chinese Grocery Store at Townshend Street, Phillip. On Tuesday 9 July 1985, members of the police force maintained surveillance on both the front and rear doors of those premises. During that surveillance, a delivery van marked "Wing Kuen" and an A.C.T. Transport vehicle arrived at the rear of the premises and goods were unloaded from both vehicles and stacked outside the shop. In the early afternoon, a man named Harry Malavetas ('Malavetas') was seen to enter the shop through the rear door. An aqua coloured Toyota Crown sedan belonging to Malavetas was observed at the rear of the premises. Another police officer a short time later saw Malavetas enter the front of the shop and a few minutes later leave it. On these occasions Malavetas was photographed.

8. At about 1.15 p.m., Malavetas was seen to help a number of men of Asian appearance carry cardboard boxes into the rear of the shop. At about 3 p.m., Malavetas left the rear of the shop, had a conversation with the driver of a red H.Q. Holden sedan parked nearby, and then re-entered the shop. Some minutes later, he left the shop, got into his own vehicle, and drove in the direction of Townshend St. following the red sedan. Shortly thereafter, Malavetas was intercepted by police officers, and found to be in possession of a single white "Tudor" brand press seal envelope which contained two folded pieces of aluminium foil, each of which in turn contained a quantity of white powder. An analyst, Mr. Peter Smith, mixed the contents of the two folded pieces of aluminium foil. The total mixture weighed 1.631 grams and, on analysis, 391 milligrams of that substance was heroin, that is to say, 24% by weight.

9. At about 4.30 p.m. that afternoon, police officers entered the premises of the Wing Fat Grocery Store in the execution of a search warrant and, in the course of a search of the premises, found in a wall safe a quantity of white powder in a number of plastic bags contained in a larger plastic bag, which in turn was inside a calico bag labelled "National Australia Bank". An amount of $1419 was also found in the safe. The key to open the safe was one of three keys on a keyring which had been handed to a police officer by the cross-appellant. In the office of the shop premises where the safe was situated, police officers also found an opened box of "Glucodin", which is a brand of glucose, and an opened box of "Sweetaddin", which is a sugar substitute. These two items were on the second shelf of a bookcase in the office.

10. In the bottom drawer of a desk adjacent to the safe was found a single "Tudor" brand press seal envelope which had a star pattern on it in blue ink, four pieces of silver foil, and a silver spoon. A cardboard box containing unused and unmarked "Tudor" brand press seal envelopes was found on the floor beside the bookcase. A number of packets of aluminium foil were located in the bottom of a metal locker. On the top of the locker was an opened packet of "Alcan" Caterers' Foil.

11. In a blue jacket hanging on the wall of the office, a number of papers bearing the cross-appellant's name were removed from an outside pocket by a police officer. These documents included N.R.M.A. Insurance papers, a Medicare letter, as well as an envelope addressed to the cross-appellant at the Townshend Street address. Detective Peters asked the cross-appellant whose papers they were. He admitted that they were his and, when asked, "Why are your papers in the pocket?" he replied "Sometimes I wear". There was also an opened packet of "Bank" cigarette tobacco. The cross-appellant was observed that afternoon to roll his own cigarettes. Another police officer removed from an inside pocket of the jacket a white "Tudor" brand press seal envelope with a star pattern drawn in black ink on its front. This envelope contained eight folded pieces of aluminium foil, each of which contained a white powder. The cross-appellant denied ever having seen this material. Mr. Smith, the analyst, later mixed the powder contained in the eight aluminium foils. The total mixture weighed 7.7 grams, 2.1 grams of which was heroin, being 27% by weight. It is to be noted that this amount exceeds the traffickable quantity.

12. The white powder contained in the plastic bags inside the larger plastic bag in the calico bank bag was mixed by the analyst. It weighed 198.4 grams, of which 129 grams was heroin, that is to say, 65% by weight.

13. The four pieces of foil found in the bottom drawer of the desk were of similar dimensions to the two pieces of foil found in the possession of Malavetas, and of similar dimensions to the eight pieces of foil found in the inside pocket of the jacket.

14. Fingerprint evidence of experts at the trial was to the effect that a fingerprint on one of the eight aluminium foil pieces found in the envelope in the inside pocket of the jacket in the office was identical with the print of the left middle finger of Mr. Suen. On two of the four pieces of foil found in the bottom drawer of the desk, which desk the cross-appellant admitted using, were found prints identical with the left thumb print and left little finger of Mr. Suen. On the opened aluminium foil roll found on the top of the metal locker was found a fingerprint identical with the print of the left ring finger of Mr. Suen.

15. The cross-appellant denied to police officers that the white powder found in the safe was his. He told the police officers "My partner got the key too". Mr. Suen had for two years been in partnership in the grocery store with one David Au Leong. At that time he said that "Just David" had a key apart from himself.

16. At the police station that afternoon, the cross appellant was found to have $1808 in his possession, the majority of it in individual bundles of $100. He was asked concerning this money:-

"I said to the accused, Where did his money come
from?
He said, 'The shop'.
I said, 'How come it's all in $100 lots?'
He said, 'From the customers, they pay.'
I said, 'What do they pay for?'
He said, 'Groceries'.

17. At a later time, he denied ever having worn the jacket in which the envelope containing the eight pieces of foil was found. He said that his wife had placed the pieces of correspondence bearing his name in that jacket, and had told him of what she had done.

18. Later, in questioning by police officers, he was unable to tell the police officers what the package labelled "Glucodin" was used for. He was asked:-

"Whilst in your office this afternoon this package
labelled "Glucoden" (sic) was found in the
bookshelf. Can you tell me what this is used for?

A. I don't know.

Q. Have you seen it in the office?

A. I don't exactly remember.

Q. Also whilst searching your office this
afternoon, a number of rolls of silver foil were
located. Can you tell me why that silver foil is
kept in the office?

A. I don't know either."

19. The spoon found with the four foil pieces in the drawer of the desk in the office of the grocery store was examined by Mr. Smith, who detected heroin on the spoon.

20. According to Mr. Smith, the heroin from the eight foils in the envelope in the inside of the jacket, and the heroin in the two foils in the envelope found on the person of Malavetas were derived from the same stock: each came from the same manufactured batch and differed significantly from the usual heroin samples encountered. This was so, particularly because there was a reversal of the normal ratio of monoacetyl morphine to acetyl codeine. The uncut heroin in the safe was also from the same manufacturing process. Of the heroin found in the jacket and the heroin found in the envelope on the person of Malavetas, he said:-

"I carried out most exhaustive testing of all on
those two and found that in all respect they were
the same."

Each of them had been 'cut' with glucose. He was unable to perform a test to discern whether the glucose was "Glucodin". The concentration of heroin in the envelope in the jacket was 27%, while that found on the person of Malavetas was 24%.

21. Mr. Smith said that the heroin found in the safe had not been "cut", that is to say, diluted or altered by the addition of other substances. The 35% which was not heroin in that sample was made up of other materials in the manufacturing process.

22. It was submitted on the appeal by Mr. Suen that the evidence concerning the movements of Malavetas and his possession of heroin was wrongly admitted and that the learned trial judge erred in his directions to the jury as to the use they could make of the evidence relating to Malavetas.

23. The learned trial judge directed the jury concerning the use that could be made of the evidence about Malavetas in this way:-

"Now, it may be, depending on the circumstances of
the case, that if the Crown can show to your
satisfaction that the person charged has in fact
supplied heroin on a previous occasion, you can
take that into account in deciding whether or not
the Crown has proved the purpose for which the
accused had the heroin at the time alleged, that
is to say, when the police officers arrived at the
premises in the late afternoon of 9 July last
year. But that evidence of any previous supply
may not be taken into account to proving the
actual custody or control at the time when it is
alleged, for the purposes of the present charge,
the accused was in possession."

Of the evidence concerning Malavetas, he later said:-

"As I say, that evidence in no way can go to prove
that the accused had the heroin in question with
which he is charged in his possession. But it
might go to prove that if the accused had heroin
in his possession then he had it for the purpose
of supplying."

Having referred to the unusual similarities between the heroin found in the possession of Malavetas and that found in the office of the grocery store, his Honour continued:-

"But I give you this warning, that it would not be
proper for you to take the evidence relating to
Malavetas into account to establish the guilt of
the accused on the charge brought against him here
unless you found that those facts alleged in
relation to Malavetas were established beyond
reasonable doubt, . . . "

and he later told the jury:-

" . . . you should not take those facts into account to
establish or to assist to establish, rather, the
guilt of the accused in relation to the charge
brought against him here, unless you found those
facts in relation to the alleged supplying to
Malavetas established beyond reasonable doubt and
establishing that it was the accused who supplied
the drug in question to Malavetas."

24. In relation to the evidence concerning Malavetas, he gave them a direction concerning the circumstantial nature of that evidence, which direction was not the subject of challenge on the appeal.

25. The trial judge thus clearly instructed the jury that:-

(i) the evidence concerning Malavetas was of
assistance to their task if and only if they
were satisfied beyond reasonable doubt that
Suen supplied the heroin found in
Malavetas's possession to Malavetas;

(ii) such evidence could in no way prove that
Suen was in possession of the heroin the
subject of the charge against him;

(iii) if the jury were otherwise satisfied beyond
reasonable doubt of the possession of heroin
by Suen, such evidence might assist in
establishing that the intention of Suen in
respect of that heroin was to supply it to
others.

26. By way of an aside, one might question the judgment by the prosecution concerning the forensic advantage sought to be gained by leading the Malavetas evidence, having regard to the strength of the evidence directly relating to the heroin in the office of the grocery shop and Suen's involvement in it, and the sheer amount of the heroin found in the safe. It could hardly be submitted with credibility that it was for anything other than to supply.

27. Counsel for Suen submitted that the suggested use of the Malavetas evidence offended the rules of admissibility concerning similar fact evidence, and further submitted that the evidence was not sufficient to permit any reasonable jury to conclude beyond reasonable doubt that Suen had supplied Malavetas with the heroin found in Malavetas's possession.

28. As to the submission concerning similar fact evidence, in my opinion the admissibility of the evidence concerning Malavetas is not to be determined by reference to those rules. The Crown alleged that Suen had the heroin in his possession for the purpose of supply. In my opinion, if it could be established beyond reasonable doubt that a short time anterior to a large quantity of heroin being found in Suen's possession, Suen had supplied a quantity of heroin to another, that would be probative of the intention that Suen had in relation to the heroin in his possession.

29. I respectfully agree with the observations of the learned trial judge when, in the absence of the jury, he ruled on the admissibility of the evidence concerning Malavetas:-

"It seems to me that as long as the Crown can
produce evidence which would tend to show that the
heroin found at the premises was in the possession
of the accused, then the evidence in relation to
what was found on Malavetas is probative of the
purpose for which the accused had the powder in
his possession at the premises."

30. The evidence was led not to establish propensity or identity, but purpose. It was close in time and place to the finding of the heroin, the subject of the charge against Suen.

31. In my view, the admissibility of the Malavetas evidence is concluded by the judgment of Wilcox and Miles JJ. in Bell v. R. (1985) 63 ALR 433. In that case, the appellant's bedroom had been searched by police on 3 July 1984 and a quantity of heroin found. At the trial, evidence was given, after objection, that Bell had confessed to a police officer that on the previous day, 2 July 1984, he had purchased a quantity of heroin and intended to use some and to sell some and that he had already sold 2 deals of the heroin for $300.00 each. Rejecting the submission that the evidence concerning the sale of the heroin on the previous day amounted to proof of similar facts, and that the evidence did not meet the requirements for the admissibility of such evidence, their Honours said at 439:-

"The answer to that submission is that the disputed
evidence in the present case may not be placed in
the category of similar fact evidence. . . . For the
purpose of ascertaining what his purpose was in
relation to the heroin that was or remained in his
possession on 3 July 1985 (sic), it was logically
probative - although not conclusive - to enquire
as to whether and how the appellant had disposed
of any part of the heroin since the time of its
purchase. The admission that he had already sold
two portions the previous day was probative of the
purpose for which he was in possession of the
remainder on 3 July 1984. Simply because the sale
the previous day amounted to a separate offence
not charged on the indictment, did not mean that
it was a piece of evidence which could be placed
before the jury only upon satisfaction of the
rules relating to similar fact evidence. The law
relating to similar fact evidence does not apply
where the evidence in question relates to facts
which are so closely connected with the essential
facts constituting the charge that they are seen
to form one transaction."

32. I also reject the submission that the evidence was incapable of establishing that Suen had supplied to Malavetas the heroin found in Malavetas's possession. Conscious of the principles of Peacock v. R. [1911] HCA 66; (1911) 13 CLR 619 and Chamberlain v. R. [1984] HCA 7; (1983) 153 CLR 521, it is my opinion that the evidence was such as to permit the jury to be satisfied beyond reasonable doubt that the heroin on the person of Malavetas had been supplied by Suen, although they were not compelled to reach that conclusion. The learned trial judge himself, in his sentencing remarks, indicated that he proceeded on the basis that he was not so satisfied.

33. The peculiar characteristics of the three lots of heroin in this case, one might think, lead necessarily to the conclusion that the three lots came from the same manufactured batch. On that premise, a number of hypotheses exist in relation to the heroin found in Malavetas's possession. First, Suen supplied Malavetas with it. Secondly, there was a common earlier supplier, who supplied independently to Suen and to Malavetas. Thirdly, Malavetas supplied Suen with the heroin in the grocery store, retaining for himself the heroin in his possession. Fourthly, somebody in the grocery shop other than Suen supplied Malavetas with it from the heroin cut and packaged there.

34. In my view, it was open to the jury to reach the conclusion contended for by the Crown, having regard to the physical presence of Malavetas at Suen's store shortly beforehand, the nature of the heroin itself, the method of packaging of the heroin found on the person of Malavetas, and the evidence of "cutting" and packaging activity in the office of the grocery store, and Suen's involvement in it.

35. The heroin found on Malavetas was wrapped in aluminium foil and found inside a "Tudor" press seal envelope. A packet of Tudor press seal envelopes was found in the office of the Wing Fat Grocery Store. While one mayaccept that such envelopes are not rare, it is an element in support of the hypothesis suggested by the Crown. Similarly packaged heroin was found in the jacket, and Suen's fingerprints were found on the foil of one of the eight packages inside the jacket.

36. The dimensions of the two pieces of foil in Malavetas's possession were similar to the eight pieces inside the jacket and to the four pieces found in the drawer. Suen's prints were found on two of the four pieces found in the drawer. Those pieces of foil were found with a teaspoon which bore traces of heroin on it. There was an open roll and unopened rolls of aluminium foil in the office, and an opened box of Glucodin. Suen's fingerprints were found on the opened roll of aluminium foil.

37. The heroin found on Malavetas and the heroin in the jacket had been cut with glucose and to the same approximate extent. The heroin in the safe was uncut.

38. From the fingerprints, spoon, foil, Glucodin and envelopes, the jury in my view could properly conclude that Suen had been engaged in the "cutting" and packaging of heroin in the office in the grocery shop. It was also open to them, from the identity of the heroin stock, the presence of Malavetas at Suen's shop a short time before, and the manner of packaging of the heroin found in Malavetas's possession, to conclude that Suen had supplied it to Malavetas.

39. It was suggested that the absence of evidence of any weighing instruments or scales in the shop, and there being a different percentage of heroin in the heroin found on the person of Malavetas to the heroin found in the jacket, tend against the conclusion that Suen had supplied Malavetas. Neither suggestion strikes me as compelling.

40. The absence of evidence of weighing instruments does not establish affirmatively that there was none in the shop. Even if that was the case, the "cutting" of the heroin may have been achieved by volume rather than weight. It is to be remembered that a teaspoon with traces of heroin on it was found in the office. There is nothing unusual about mixing two substances by, say, a couple of spoons of one with a certain number of spoons of another. If this were the method of mixing, it is not surprising that there might be differences in the percentage components from one sample to another; alternatively, even if there had been but one mixing of heroin and glucose, it is only if there had been a uniform distribution of components in that mixture before its division into various parcels that one would expect the percentage of heroin in each sample to be precisely the same. Those who have mixed concrete would not be surprised at any slight variation in composition from one shovel full of a mixture to another, because there would only be an identity in the ratio of components if the mixing had achieved the intended uniform distribution of the components throughout the total mixture.

41. In my opinion, it was competent for the jury to be satisfied beyond reasonable doubt that the heroin on the person of Malavetas came from Suen.

42. It was next said on behalf of the cross-appellant, that the Crown ought to have called Malavetas as a witness. It is true that no reason was advanced for the absence of Malavetas as a Crown witness. In R. v. Apostilides [1984] HCA 38; (1984) 154 CLR 563, the High Court propounded general propositions so far as the calling of witnesses in criminal trials in Australia is concerned. The joint judgment of Gibbs C.J., Mason, Murphy, Wilson and Dawson JJ. makes it plain that it is the Crown Prosecutor alone who has the responsibility of deciding whether a person will be called as a witness for the Crown; a trial judge may inquire of the prosecutor for the reasons which led him to decline to call a particular witness, but it is not for the trial judge to adjudicate upon the sufficiency of those reasons. In his charge to the jury, the trial judge is entitled to make such comments as he thinks will be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have on the course of the trial and, finally, that a decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.

43. In this case, no request was made at the trial by counsel for Mr. Suen that the Crown call Malavetas as a witness. Moreover, the evidence which Malavetas could give would be concerning the possession of heroin by him, and its source. He would be entitled to claim privilege in respect of that evidence and it would be the obligation of the trial judge to warn him of his entitlement to claim that privilege. The trial judge did in fact tell the jury:-

". . . there has been no explanation as to why
Malavetas has not been called and so you should
regard the evidence relating to his transactions,
with the accused, if there were any, if you think
there might have been such transactions, with very
great care."

44. In my opinion, on no view of the conduct of the trial could the failure of the Crown to call Malavetas be seen as constituting or giving rise to a miscarriage of justice.

45. Finally, on the question of sentence, there is no suggestion by counsel for the Crown or for Mr. Suen that the learned trial judge erred in any of the findings of fact that he made relevant to sentence, and it is clear that he took into account all the relevant features revealed in the evidence. The short contention by the Crown is that the sentence is so inadequate as to lead to the conclusion that an error must have occurred. This submission was based simply on the purity and volume of the heroin in respect of which Suen was convicted.

46. Counsel for the Crown in the submissions on sentence said:-

". . . there is just no evidence as to what part if
any this accused played in a link of heroin
distribution, whether there were any other
partners or whether this accused has merely
decided to take the rap for others. That is
something the police cannot ascertain, something
your Honour cannot ascertain or in my submission
speculate upon.

He has come into that witness box and told what
must be only, in your Honour's finding, untruths
in relation to this heroin. The jury have
certainly not believed him and so your Honour can
find from that either he is, as you put it, Mr.
Big in a heroin distribution in the ACT or he is
just sitting pat and taking a rap for whoever is
Mr. Big. Whichever way it goes, he is to be
punished as Mr. Big because he has chosen that
path and with respect, your Honour cannot
speculate any other way."

47. In my opinion, not only is the manner of expression of the submission wanting, but the gravemen of the submission is wrong.

48. The learned primary judge, having referred to the modest lifestyle of Mr. Suen, continued:-

"The unsophisticated nature of the way in which the
heroin was packaged and kept on the premises seems
to me to be remarkable in all the circumstances
having regard to the large amount in possession
and the hazards that the possessor faced in
keeping it on the premises. In the end, however,
I am satisfied neither that the offender acted
alone, nor that he was the effective organizer of
other persons in what was to be a distribution of
an unprecendently large quantity of heroin in the
Canberra area."

49. Immediately before imposing sentence, he said:-

"The head sentence which I am about to impose,
together with the minimum term to be served, will
reflect only to a slight degree the offender's
good previous character. The evils of the heroin
trade are well recognized as is the need for
offences connected with trafficking in heroin, to
reflect the severity with which those offences
will be met by the criminal justice system."

50. In my respectful opinion, the learned trial judge was right in the approach he adopted in that, while recognising both the volume and purity of the heroin involved in this case, the sentence to be imposed on Suen was not to be determined simply by that fact, but by what had been established against Suen in relation to that heroin.

51. In my view, not only did the learned trial judge take into account all relevant considerations, but the sentence that he imposed does not manifest error.

52. I would dismiss both the appeal against sentence and the cross-appeal against conviction, save that the non-parole period should be fixed to expire on 8 April 1990.