LE -v- THE KING [2026] WASCA 117

[2026] WASCA 117 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LE -v- THE KING [2026] WASCA 117 CORAM : MITCHELL JA HALL JA SEAWARD JA HEARD : 5 JUNE 2026 DELIVERED : 28 AUGUST 2026 FILE NO/S : CACR 98 of 2024 BETWEEN : PHUOC SANG LE Appellant AND THE KING Respondent FILE NO/S : CACR 113 of 2024 BETWEEN : THANH HUNG NGUYEN Appellant AND THE KING Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : SWEENEY DCJ File Number : IND 507 of 2021 -- 1 of 56 -- [2026] WASCA 117 Page 2 Catchwords: Criminal Law - Drug offences - Importation of commercial quantity of methamphetamine - Whether guilty verdicts unreasonable or unsupported by evidence - Whether evidence of interpreters was properly admitted - Whether absence of new evidence gave rise to miscarriage of justice at trial - Whether direction of trial judge prevented miscarriage of justice from arising from inappropriate questions asked of accused during cross-examination - Whether trial judge gave wrong decision on question of law in directing jury about whether they must accept evidence of expert witnesses Legislation: Crimes Act 1914 (Cth), s 3LA Criminal Code (Cth), s 11.2A, s 307.1 Result: CACR 98 of 2024 Application to adduce additional evidence dismissed Application for an extension of time to comply with self-executing order dismissed Appeal remains dismissed pursuant to self-executing order CACR 113 of 2024 Application to adduce additional evidence dismissed Leave to appeal refused Appeal dismissed Category: B Representation: CACR 98 of 2024 Counsel: Appellant : In person Respondent : P Yovich SC & J Solliss Solicitors: Appellant : In person Respondent : Director Of Public Prosecutions (Cth) -- 2 of 56 -- [2026] WASCA 117 Page 3 CACR 113 of 2024 Counsel: Appellant : In person Respondent : P Yovich SC & J Solliss Solicitors: Appellant : In person Respondent : Director Of Public Prosecutions (Cth) Case(s) referred to in decision(s): Beamish v The Queen [2005] WASCA 62 Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 Donald Atkins (a pseudonym) v The State of Western Australia [No 3] [2026] WASCA 93 DPJB v The State of Western Australia [2010] WASCA 12 Frengos v The Queen [2012] VSCA 18 Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 NTE v The State of Western Australia [2024] WASCA 99 Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 Rodgers v The State of Western Australia [2023] WASCA 52; (2023) 307 A Crim R 196 Sethi v The State of Western Australia [2020] WASCA 173 Visser v The State of Western Australia [No 2] [2025] WASCA 74 Walsh v The State of Western Australia [2024] WASCA 78 -- 3 of 56 -- [2026] WASCA 117 Page 4 Contents Introduction ................................................................................................................................ 5 Parties' cases at trial .................................................................................................................... 6 Prosecution case at trial .......................................................................................................... 6 Defence cases at trial .............................................................................................................. 7 The appeal to this court .............................................................................................................. 8 The unreasonable verdict grounds .............................................................................................. 9 General principles ................................................................................................................... 9 Evidence of Minh ................................................................................................................. 12 Covert recordings ................................................................................................................. 17 Translation of covert recordings ........................................................................................... 26 Evidence of Hung's movements ........................................................................................... 28 Items located in executing search warrants .......................................................................... 28 Tracking the consignment .................................................................................................... 29 Hung's evidence .................................................................................................................... 31 Sang Le's evidence ............................................................................................................... 34 Other defence evidence ........................................................................................................ 39 Particular matters raised by appellants' grounds of appeal ................................................... 41 Conclusion as to unreasonable verdict grounds ................................................................... 43 Decision not to discharge the jury ............................................................................................ 45 Direction about expert evidence ............................................................................................... 51 Application to adduce additional evidence in the appeals ........................................................ 52 Orders ....................................................................................................................................... 55 CACR 98 of 2024: Sang Le's appeal ................................................................................... 55 CACR 113 of 2024: Hung's appeal ..................................................................................... 55 -- 4 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 5 JUDGMENT OF THE COURT: Introduction 1 On 22 December 2018, an industrial oven in a FedEx parcel was consigned from Toronto, Canada. The parcel was addressed to a person, who it is convenient to refer to in these reasons by the pseudonym Minh, of HKM Used Hospitality Equipment Pty Ltd (HKM). The parcel was consigned to an address in Maddington, a suburb of Perth (Maddington premises). The consignment note identified a mobile phone number ending in 497 (consignment phone number) as Minh's contact number. About 20.9 kg (16.8 kg pure weight) of methamphetamine was concealed in the oven. 2 The FedEx parcel arrived in Sydney on 31 December 2018. On 3 January 2019, while the parcel was still in Sydney, federal police and customs authorities located the methamphetamine concealed in the oven. Police replaced the methamphetamine with an inert substance. On 10 January 2019, police attempted to deliver the FedEx parcel to the Maddington address in a controlled operation. However, no one was present at the Maddington premises to receive the consignment. 3 On 15 January 2019, police arrested Minh and the appellants, Phuoc Sang Le (Sang Le) and Thanh Hung Nguyen (Hung).1 They were charged with importing a commercial quantity of methamphetamine concealed in the oven contrary to s 307.1(1) of the Criminal Code (Cth). 4 Minh pleaded guilty to this offence prior to trial and testified as to his and the appellants' involvement in the importation at trial in return for a substantial reduction in the sentence which he would otherwise have received. 5 Hung and Sang Le were tried before the trial judge and a jury between 6 March 2024 and 24 May 2024. Both were convicted of the importation offence. 6 Hung was also convicted of failing to comply with an order requiring him to give police a PIN code to a mobile phone, contrary to s 3LA(5) of the Crimes Act 1914 (Cth). 1 Many of the witnesses and other persons referred to in the evidence have the surname 'Nguyen'. To avoid confusion, we will generally refer to these people by a first name, as occurred at trial, without intending any disrespect. -- 5 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 6 7 Both Hung and Sang Le now appeal against their convictions. Sang Le's conviction appeal was dismissed pursuant to a self-executing (springing) order when he failed to comply with a requirement to file his appellant's case. The appeals were listed before us to consider Hung's appeal and Sang Le's application for an extension of time to comply with the springing order. The grounds of appeal which Sang Le proposes to advance are contained in an appellant's case which Sang Le intends to file if an extension of time is granted, annexed to his supporting affidavit, and are very similar to those relied on by Hung.2 8 For the following reasons, neither appeal has any merit. Leave for Hung to appeal should be refused and his appeal should be dismissed. As there is no merit in Sang Le's proposed grounds of appeal, there would be no utility in extending the time for him to comply with the springing order. Sang Le's application for an extension of time in which to comply with the springing order should be refused. Sang Le's appeal therefore remains dismissed pursuant to the operation of the springing order. Parties' cases at trial 9 There was no issue as to the fact of the importation of the commercial quantity of methamphetamine concealed in the oven, which the appellants admitted at trial. The prosecution did not allege that either appellant personally imported the methamphetamine. The contest at trial on the importation charge was whether the appellants were involved in a way that made them criminally responsible for the importation. Prosecution case at trial 10 The prosecution case was that each appellant was criminally responsible under s 11.2A(1)(a) and (b)(i) of the Criminal Code. This was on the basis that they intentionally entered into an agreement with at least one other person to commit the offence of importing a commercial quantity of methamphetamine into Australia, that they intended that this offence would be committed under the agreement, and that the offence was committed in accordance with the agreement. The prosecution case was that Hung entered into an agreement with at least one other person in Vietnam to import more than 750 g (the threshold for a commercial quantity) of methamphetamine into Australia concealed in an oven, and 2 Sang Le subsequently filed documents containing amended grounds of appeal. The status of those later documents is unclear. The proposed amended grounds are substantively to the same effect as those in the draft appellant's case annexed to Sang Le's affidavit. In these reasons we have referred to Sang Le's grounds of appeal annexed to his supporting affidavit. -- 6 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 7 that Minh and Sang Le joined in that agreement prior to the importation occurring in accordance with the agreement.3 11 To prove the existence of the alleged agreement, the prosecution principally relied upon: 1. Minh's evidence as to Hung organising the importation and arranging for Minh and Sang Le to assist in the receipt of the methamphetamine; 2. interpreted transcripts of the intercepted phone calls and recordings of a listening device in Hung's car (the discussions principally being in Vietnamese); 3. evidence concerning the tracking of the FedEx parcel from Sang Le's internet service, and Hung's and Sang Le's knowledge of the parcel being held up in Sydney; and 4. evidence of items found in searches of the Maddington premises and places associated with the appellants. 12 The prosecution also relied on evidence that Hung and Sang Le had previously engaged in drug dealing activity and had financial difficulties as supporting the inference that they knowingly entered into an agreement to import the commercial quantity of methamphetamine. Defence cases at trial 13 Trial counsel for both appellants contended that the evidence of Minh was unreliable and motivated by a desire to obtain a benefit from cooperating with the authorities and to deflect responsibility for a drug importation in which he was involved. 14 Both appellants gave evidence at trial. 15 Sang Le accepted that he leased the Maddington premises to Minh but said that this was an ordinary commercial arrangement. He said that he had no knowledge of or involvement in any importation of the oven or the methamphetamine concealed in the oven. 16 Hung accepted that he had become involved in an illegal importation operation, but that operation concerned the importation of tobacco, not methamphetamine. His evidence was to the effect that he 3 Trial ts 359 - 360 and see the case the trial judge left to the jury at trial ts 4267 - 4272. -- 7 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 8 had no knowledge of the methamphetamine concealed in the oven and no involvement in its importation. 17 Both Hung and Sang Le denied any previous involvement in dealing in prohibited drugs. 18 Each of the appellants also called the evidence of some other witnesses in support of their cases, which will be discussed below. The appeal to this court 19 Both appellants are self-represented, and English is not their first language. The form of their grounds of appeal and supporting submissions suggests that they might have received some assistance in preparing those documents. However, the grounds and submissions have evidently not been drafted by a lawyer. The proposed grounds of appeal of the two appellants are very similar and largely overlap. 20 In substance, although not always in form, the grounds of appeal mostly boil down to the proposition that the verdicts of guilty on which their convictions of the importation offence are based should be set aside because, having regard to the evidence, they are unreasonable or cannot be supported.4 It is unnecessary to set out the terms in which those grounds are expressed here. We will deal with the substance of the particulars raised by the grounds in considering whether the verdicts are unreasonable or cannot be supported having regard to the evidence. 21 We will also deal with two other issues which are raised by the grounds. The first concerns the way the trial judge dealt with the prosecutor cross-examining Sang Le in a way that suggested he had an obligation to call evidence. The second concerns a direction by the trial judge as to how the jury could deal with evidence relating to an expert witness, Dr Richard Adams, who was called by Sang Le. 22 Finally, although the issue is not raised by any of the proposed grounds of appeal, the appellants seek to rely on additional evidence contained in two affidavits sworn by Hung. At the hearing, we allowed the appellants to make oral applications to adduce these affidavits as additional evidence in the appeals. We received those affidavits provisionally, and Hung was cross-examined on them. We consider below whether those affidavits should be received as additional evidence 4 Criminal Appeals Act 2004 (WA) s 30(3)(a). -- 8 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 9 in the appeal and whether the absence of the evidence at trial gave rise to a miscarriage of justice. The unreasonable verdict grounds 23 We turn to consider the question of whether the convictions of either appellant, or both appellants, should be set aside because, having regard to the evidence, they are unreasonable or cannot be supported. 24 In our view, the prosecution case against both appellants was strong, and nothing in the particularised grounds of appeal or submissions in support of those grounds establishes that the guilty verdicts were unreasonable. The evidence led at trial was also extensive. The trial ran for almost three months, and the trial transcript is more than 4,000 pages long. There were extensive documentary exhibits. 25 Having regard to the strength of the prosecution case, we would refuse leave to appeal on the grounds contending the guilty verdicts to be unreasonable. It is unnecessary to attempt to summarise all of the very detailed evidence relied on by the prosecution to establish the appellants' guilt. 26 Rather, we will identify the critical aspects of the prosecution case which suffice to satisfy us, beyond reasonable doubt, that both appellants intentionally entered into an agreement to import a commercial quantity of methamphetamine of the kind described at [10] above. That evidence comprises the principal matters referred to at [11] above. We will also deal with why it was open to the jury to positively reject the appellants' denials of the offending, before addressing specific issues raised by the appellants in their grounds of appeal and submissions. 27 In taking this approach, we will put aside other aspects of the prosecution case, such as the evidence concerning the appellants' other drug dealing activity and financial circumstances. While this evidence offers additional support for the prosecution case, it is not required to reject the appellants' unreasonable verdict grounds. General principles 28 The principles governing the determination of appeals on the ground that a verdict is unreasonable or unsupported by the evidence, derived from the High Court's decision in M v The Queen,5 are well 5 M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 523 - 525. -- 9 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 10 established. The principles were recently summarised in Visser v The State of Western Australia [No 2],6 in the following terms: 1. It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported. 2. An appellate court must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in all the circumstances to permit the verdict to stand. 3. The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence). 4. The appellate court's task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction. 5. The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. 6. The appellate court's function is to determine for itself whether the evidence at trial was sufficient in nature and quality to remove any reasonable doubt that the accused was guilty of the offence charged. The critical issue is whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt, which the court cannot assuage by having regard to such advantage as the jury can be taken to have had by reason of having seen and heard the evidence at trial. 7. The appellate court examines the trial record to ascertain whether, despite the jury's advantage in having seen and heard the witnesses in the context of the trial, the jury, acting rationally, should have entertained a reasonable doubt as to proof of guilt. 6 Visser v The State of Western Australia [No 2] [2025] WASCA 74 [118] - [119]. -- 10 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 11 8. The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. 9. The setting aside of a jury's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by jury. 10. The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict. 11. The nature and extent of the appellate court's task, in a particular case, will be informed by the elements of the offence, the accused's defence, the issues in contest at the trial, the manner in which the trial was conducted, the way in which the case was ultimately left to the jury, and the particulars of the ground of appeal. The question for the appellate court is whether, upon its examination of the record, by reason of inconsistencies, discrepancies or other inadequacies, or in light of other evidence, the court is satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to guilt. Differently framed, the central question is whether the assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt, which cannot be assuaged by the reference to the advantages enjoyed by the jury of having seen and heard the evidence at trial. (citations omitted) 29 The High Court described the functional demarcation between the province of the jury and the province of the appellate court in Pell v The Queen.7 The court emphasised that the assessment of a witness's credibility by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representatives of the community.8 By contrast:9 The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought 7 Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123. 8 Pell [37] - [38]. 9 Pell [39]. -- 11 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 12 nonetheless to have entertained a reasonable doubt as to proof of guilt. (citation omitted) 30 The demarcation of the role between this court and the jury also has significance for this court's assessment of the defence witnesses. In Pell, the High Court assessed the contradictions between the evidence of the complainant in that case and a number of Crown witnesses whose evidence was not challenged by the Crown. By contrast, in the present case the prosecution did attack the appellants' evidence on credibility grounds. This court's assessment of the evidence must allow for the possibility that the jury considered that the manner in which the appellants gave their evidence impacted adversely on the jury's assessment of its credibility and reliability. Evidence of Minh 31 Minh gave evidence that, in about 2018, Hung told him about a planned importation of an oven with 24 kg of methamphetamine concealed in it from Canada. This was to be arranged by a Mr An, who was a 'big boss' from Canada who lived in Vietnam.10 At one point, Hung proposed that Minh would purchase a restaurant business to which the oven could be sent. However, the proposed purchase of the restaurant business did not proceed because of the difficulty in arranging the paperwork for the lease.11 32 Hung later brought Sang Le to Minh's house on a date which Minh thought was around September 2018 (but which the prosecution accepted was not before 22 November 2018). At that meeting, Hung and Sang Le discussed importing an oven from Canada with methamphetamine concealed in it. Sang Le explained that they needed to set up a kitchen equipment business in Perth to which the oven could be sent. Sang Le said that he knew of a business called HKN in Cannington and they should use a similar name, HKM.12 Minh agreed to be involved in the importation when he subsequently went to the Maddington premises with Hung and Sang Le.13 33 Hung took Minh to Cannington to look at the business called 'HKN', and Hung said that they should use a similar name, HKM.14 10 Trial ts 1289, 1292, 1322 - 1324, 1545, 1621. 11 Trial ts 1304 - 1305, 1333, 1829. 12 Trial ts 1319 - 1321, 1325, 1546, 1816, 1825. 13 Trial ts 1545 - 1546. 14 Trial ts 1324. -- 12 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 13 34 Sang Le indicated that he wanted to lease the Maddington premises to Minh for five years and that the fake business had to look real with a business name sign and a bank account. However, Minh said that he only wanted the lease to be for one year. Minh later signed the lease for that term.15 35 Hung and Sang Le took Minh to an accountant's office in East Perth where Minh signed documents relating to the establishment of the business, including a family trust. Hung subsequently gave these documents to Minh in a folder, which Minh left in his truck until it was found by police on 15 January 2019. Hung gave Minh the accountant's fee in cash and Minh subsequently transferred the money to the accountant (who did not want to take cash).16 36 Minh described himself, Hung and Sang Le taking steps to clean up the Maddington premises. Hung and Sang Le paid for the clean-up costs, with Hung giving Sang Le cash as Sang Le had no money. Hung organised a 'yellow haired guy' called 'Duncan' or 'Dugan' to help clean up the premises. 'Duncan' went with Hung to Bunnings to buy 'all of the stuff'.17 At one point, Minh took some kitchen equipment from Hung's house and left it at the Maddington premises. Hung told Minh to do this so that it looked like the business had started to run.18 37 Minh saw Hung say that he would pay Duncan $150 a day to help clean up. Hung gave Minh money which Minh passed on to Duncan in Hung's presence. Hung also arranged for Duncan to stay at the Maddington premises to wait for the FedEx delivery and to clean up the outside mess while he was there.19 38 On 31 December 2018, Hung bought two mobile phones at a mobile phone shop in Mirrabooka, before going into Big W to purchase stationery. Two days later, on 2 January 2019, Hung brought two phones and gave one to Minh and one to Duncan. The phone given to Minh (consignment phone) had a SIM card for the consignment phone number. Hung told Minh that the consignment phone number was on the consignment note. Hung said that Duncan would call the consignment phone number if the oven was delivered. Minh kept the consignment phone for a couple of days until Hung took it back. Hung gave the consignment phone back to Minh a couple of days before the raid on 15 Trial ts 1330, 1335 - 1337, 1407 - 1409, 1830 - 1831, 1842. 16 Trial ts 1335 - 1336, 1391 - 1394, 1400, 1470 - 1471, 1473, 1840, 1900. 17 Trial ts 1337 - 1338, 1349 - 1350, 1772 - 1776, 1862. 18 Trial ts 1339. 19 Trial ts 1350, 1775, 1787 - 1788. -- 13 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 14 Minh's house on 15 January 2019. The phone had its back cover and battery pulled out.20 39 Minh observed both Hung and Sang Le using Ciphr phones to contact each other, and Hung using a Ciphr phone to contact Mr An in Vietnam. At one point Hung gave Minh a Ciphr phone. Minh found the Ciphr phone too difficult to use due to the need to enter a complicated password twice. Minh gave the Ciphr phone back to Hung after a couple of days.21 40 On one occasion, Minh went to a property controlled by Hung in North Perth and observed Hung with a device that looked like a remote control with a little antenna on top and lights on it. Hung said that he needed to buy the device to check the oven because he was concerned police would place a tracking chip in the oven. Hung also had a vacuum sealer, which he told Minh was used to package methamphetamine or cocaine for customers.22 41 Hung had told Minh that Sang Le's job was to stay home and track the oven. After New Year's Day, both Hung and Sang Le told Minh that the oven was in Sydney. One of these occasions was on 2 January 2019, at Sang Le's house. Sang Le told Minh that he (Sang Le) was tracking the oven which was in Sydney. Hung was not there and could not be contacted because he had his phone turned off. Minh did not actually observe Sang Le tracking the oven.23 42 Hung initially told Minh that he would receive $250,000 for participating in the enterprise ($1 million to be split four ways between Hung, Sang Le, Minh and a fourth person who Minh did not know). However, when the oven arrived in Sydney, Hung told Minh there was a big mistake and that only $400,000 would be shared between four people. Before police came to arrest them, Hung told Minh that he had found a problem and there would be only $160,000 for four people. Minh felt that Hung had ripped him off.24 43 Minh did not appreciate that his name was on the consignment note for the oven until police executed the search warrant at his address. After his arrest, when he was sharing a cell with Hung, Minh asked Hung why 20 Trial ts 1351 - 1354, 1412 - 1413. 21 Trial ts 1339 - 1342, 1623 - 1624, 1832 - 1833, 1904 - 1905, 1907. 22 Trial ts 1344 - 1347. 23 Trial ts 1326 - 1327, 1344, 1819, 1826 - 1828, 1833 - 1834, 1836. 24 Trial ts 1325 - 1326, 1329, 1442 - 1443, 1907 - 1908. -- 14 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 15 he put Minh's name on the consignment note. Hung said that this was Sang Le's idea.25 44 If accepted, Minh's evidence summarised above points compellingly to Hung having arranged with persons in Vietnam and possibly Canada for a commercial quantity of methamphetamine concealed in an oven to be imported into Australia and delivered to the Maddington premises. Hung brought Minh and Sang Le into that arrangement before the importation occurred in the arranged manner so they could assist in receiving the methamphetamine. 45 However, it is necessary to approach Minh's evidence with a high degree of caution: 1. He was an accomplice who had an interest in deflecting responsibility for the importation towards the appellants. He received a significant reduction in his sentence (from 12 years' imprisonment with a non-parole period of 8 years to 9 years 3 months' imprisonment with a non-parole period of 6 years 10 months) for agreeing to give evidence in the appellants' trial.26 Minh did not agree to cooperate with police until he received advice from his lawyer to the effect that the case against him was overwhelming.27 2. Minh admitted having initially lied to police denying involvement in the importation. Minh gave a highly implausible explanation of his motivation for giving evidence and his lack of knowledge as to what he was doing when he undertook to cooperate with authorities and receive a reduction in his sentence.28 3. Significant events described above are not referred to in statements, dated 1 December 2020, 3 February 2023 and 20 June 2023,29 Minh gave to police after he agreed to cooperate with authorities. 4. There were many inconsistencies in Minh's evidence and his statements to police. To give two examples: 25 Trial ts 1357. 26 Trial ts 1278 - 1279. 27 See, for example, trial ts 1378. 28 See trial ts 1443 - 1459. 29 See trial ts 1491 - 1492. -- 15 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 16 (a) Minh gave inconsistent evidence about when Hung told him that about 24 kg of methamphetamine was to be imported. As noted at [31] above, Minh's evidence-in-chief was that Hung told him this before he met Sang Le. However, in cross-examination, Minh said that he was informed of the amount of methamphetamine after his initial meeting with Sang Le and before he went to see the accountant.30 Later in cross-examination, Minh said that Hung initially told him that the importation would be of 1 - 2 kg of methamphetamine and he was only informed that it would be about 24 kg after he first met with Sang Le.31 In re-examination, Minh said that Hung told him 24 kg would be imported before there was discussion about purchasing a restaurant business.32 (b) In December 2020, Minh told police that Hung offered him $100,000 to be involved. He did not mention to police the $250,000 Minh described being initially offered in his evidence. In cross-examination Minh said that he forgot about the $250,000 when he spoke to police.33 The trial judge identified many of the inconsistencies Hung's trial counsel relied on in her Honour's charge to the jury.34 Without setting out all those inconsistencies, they provide a significant impediment to accepting Minh's evidence at trial as credible and reliable. 46 Having regard to the above matters, it may not have been open to the jury to convict either appellant on the evidence of Minh alone. However, the prosecution case against the appellants did not rely on Minh's evidence alone. Further, other aspects of the prosecution case provide corroboration of the critical aspects of Minh's evidence. Taken together with Minh's evidence, the other evidence establishes, beyond reasonable doubt, both appellants' guilt of the charged commercial quantity importation offence. 30 Trial ts 1547. 31 Trial ts 1605, 1609. 32 Trial ts 1894. 33 Trial ts 1572 - 1573, 1610 - 1611. 34 Trial ts 4450 - 4455. -- 16 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 17 Covert recordings 47 On 20 September 2017, Australian Federal Police obtained a warrant authorising telecommunications interception for Hung's phones. A further telecommunications interception warrant and a surveillance device warrant were obtained on 8 June 2018. The surveillance device warrant authorised the installation of a listening device in Hung's black Toyota Aurion car. The listening device was installed in Hung's car on 12 June 2018.35 The following is a summary of the covert recordings (generally English translations of the original Vietnamese conversations) of central relevance to the importation of the methamphetamine in the oven. We have not included the many conversations which, on their face, relate to Hung's drug dealing business generally. 48 Even when only one of the appellants was a party to the conversation, the covert recordings could be used against both appellants in the manner explained by the trial judge:36 1. as circumstantial evidence from which the existence and evolution of the agreement could be inferred, and 2. as evidence of acts or declarations in furtherance of the agreement where the requirements of the co-conspirator exception to the hearsay rule were satisfied.37 49 On 7 September 2018, in a telephone discussion with his sister Nguyet Nguyen, Hung referred to having to go to Vietnam to meet the 'big boss' in Saigon.38 Hung departed Perth for Vietnam on 9 September 2018, returning to Perth on 24 September 2018.39 50 On 4 November 2018, the surveillance device in Hung's car recorded him discussing the use of Ciphr phones with a group of people.40 51 At 5.41 pm on 12 November 2018, Nguyet telephoned Hung and, when asked what the result was in Vietnam, answered, 'Waiting for the paperwork to be certified, should be ready tomorrow'.41 35 Trial ts 479 - 480. 36 Trial ts 4317 - 4326. 37 See Rodgers v The State of Western Australia [2023] WASCA 52; (2023) 307 A Crim R 196 [29] - [32], [367] - [368]. 38 Exhibit 77, page 163. 39 BGAB 7. 40 Exhibit 77, session 4811, pages 360 - 363. 41 Exhibit 77, page 384. -- 17 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 18 52 At 3.05 pm on 13 November 2018, Hung's brother Dung Nguyen, who lived in Vietnam, called Hung. Hung asked if Dung was 'down there' and said he (Hung) was 'in the shit now' because of Dung. Hung said that 'Mister An wants to see you right now to hand over my number so he can send gear over but now you're down there'. Hung indicated that Mr An had a flight at 4.00 pm, and asked Dung to 'contact with him right now and you make your way up right now for me'. Hung said that he would read a number to Dung.42 There was a further discussion about exchanging numbers in a call at 3.53 pm, in which Dung said that Hung needed 'to have an address ready for the consignment' and 'forward those details to him'. Dung said that 'he' had been told to say that Hung needed to 'go in five percent' in the 'whatever restaurant there'.43 In a call at 3.59 pm 13 November 2018, Hung provided Dung the code 2C06EB80, and said, 'You tell the brother to get back to me and I will chat to him on that phone'.44 In a later call at 4.12 pm, Hung read out two codes to Dung: 086A9E52 and MEIW317.45 Also at 4.12 pm, Hung received a message from an unknown caller which said, 'Hey bro just finished work have most paperwork just waiting on bit more but you can come see me [whenever]'.46 53 Hung spoke to Minh on the phone at 1.57 pm on 14 November 2018, indicating that 'I need to see you to discuss a few things in relation to the old mate … the restaurant, you know?'.47 At 2.33 pm on 14 November 2018, Hung had a long telephone discussion with Nguyet about seeing a solicitor in relation to a lease for Minh. They discussed what Hung should say to the solicitor who might ask 'quite complicated questions'. Nguyet indicated the most important thing to say was that Minh did not owe any money to the bank.48 At 3.15 pm, Minh called Hung and Hung said that he would drop by Minh's house.49 54 Hung called Minh at 11.37 am on 16 November 2018, indicating that he was 'with the agent now', and had told the agent that Minh had no debt. Hung spoke briefly with the solicitor who was unclear as to what assistance Minh required. Minh indicated that he was driving and could not get to the solicitor's office then. Hung said that he would talk on behalf of Minh and then 'maybe we make another appointment with 42 Exhibit 77, pages 386 - 387. 43 Exhibit 77, pages 388 - 390. 44 Exhibit 77, pages 393 - 396. 45 Exhibit 77, pages 398 - 402. 46 Exhibit 77, page 403. 47 Exhibit 77, page 404. 48 Exhibit 77, pages 406 - 411. 49 Exhibit 77, page 412. -- 18 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 19 him'.50 At 12.18 pm on 16 November 2018, Hung called Minh and said that Minh needed to phone the 'agent'.51 55 The listening device in Hung's car recorded a discussion between Hung and Minh on 17 November 2018. They appear to have discussed how to surreptitiously take custody of imported goods. The recorded conversation included the following statements:52 Minh: I don't fucking understand how they send it, which way they're sending it from Vietnam, do you know? From which company, do you know? Hung: No fucking idea. … Hung: The guy wouldn't know either. Sent by those guys from America. Minh: America … Hung: Unless you open it and take it all out and they catch you with the evidence then you're dead for sure. Do you know what I'm saying? (Indistinct) 'I don't know who sent it to me, I don't fucking know', you know what I mean? 56 At 6.51 pm on 18 November 2018 in a call between Hung and Dung, Hung complained that Mr An had called Dung yesterday 'to do things' but a girl who had borrowed the phone answered. Hung told Dung to 'ring the guy' using 'a number that is for the purpose of ringing him only', and to 'return to Saigon to get on with the work right now'.53 57 At 10.30 am on 21 November 2018, Hung again called Dung and told him to 'Go and see Mr An and take care of business mate', and that he (Dung) should be in Saigon, which was where Mr An had said he would be.54 58 At 3.34 pm on 21 November 2018, Hung called Nguyet and, when she said she went to see a solicitor, responded 'Solicitor in relation to the 50 Exhibit 77, pages 414 - 416. 51 Exhibit 77, pages 418 - 419. 52 Exhibit 77, pages 423 - 424. 53 Exhibit 77, page 432. 54 Exhibit 77, page 439. -- 19 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 20 restaurant, is it?'. When Nguyet said, 'Big boss is very busy eh', Hung replied, 'They're monitoring my phone'.55 59 At 1.08 pm on 25 November 2018, the listening device in Hung's car recorded Hung and Minh taking photos of a sign from the car. This appears to be the trip Minh referred to in his evidence noted at [33] above. During that discussion, the following exchange occurred:56 Hung: His/her is new. Ours is used you know. Hospitality Kitchenaid … Used … Used Hospitality Kitchenaid. Minh: Hospitality Kitchen. Hospitality Kitchen brother (laughing happily). Not bad at all, right! Minh: This guy … I have delivered goods to this guy. I have delivered goods to him several times. Hung: Really? 60 The listening device in Hung's car recorded discussions between Hung and Sang Le on 1 and 8 December 2018. On 8 December 2018, they discussed the need to form a company with a tax number for the business. Sang Le said that 'It states that this is the company that receives the [shipment/parcel/goods]57 so they would grab that one'.58 Hung observed that 'there's not much cover … for the guy who put his name to the business'. The following exchange occurred:59 Hung: [S]o there's not much cover for them, right? Sang Le: Cover for the kid or for whom? Hung: Huh? Sang Le: Cover for whom? Hung: Cover for the guy who put his name to the business. Sang Le: It's not possible. His case is like um he the person to come forward and collect, you understand me? And if 55 Exhibit 77, pages 440 - 441. 56 Exhibit 77, pages 445 - 446. 57 The translator initially translated this word as 'consignment'. Ultimately, he agreed that the better translation was 'shipment' or 'parcel', after consulting an English dictionary and seeing that the ordinary meaning of the term 'consignment' was to something sent to someone to sell and pay the sender later: see trial ts 3659, 3667 - 3668, 3675. The interpreter also accepted that the word 'goods' could be used: see trial ts 3681. 58 Exhibit 77, page 461. 59 Exhibit 77, pages 461 - 462. -- 20 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 21 our little chick stands in as a company then she will have to come forward to collect it, you know what I mean? Hung: We can say that we do not know what's going on in there, right? Is possible, right? Sang Le: You can but nothing would stop them from probing, you see? Hung: Mm. Sang Le: Because this chick is still the owner of that business and she will be probed for a period of time, do you know what I mean? Hung: Mm. -Short Break- Hung: So what about [Minh]? Sang Le: The same. They would probe like how I told you, brother. 61 Later in the discussion on 8 December 2018, Sang Le referred to finding somewhere to sit down and 'go over it properly'. Hung asked whether Sang Le meant 'sit down with [Minh]?'.60 Sang Le said it would just be the two of them so Hung could have the full details, '[b]ecause you're the one flying over there, not me'. Hung suggested they both go, and Sang Le said there would be no issue with him going.61 They later agreed that it was most crucial that Hung fly to Vietnam 'to speak to the brother', Sang Le fly to Melbourne and Minh 'stays here' to 'get it all done'.62 Sang Le referred to putting up a sign and connecting power. The following exchange then occurred:63 Sang Le: The only thing left is to clean up the office. And also to go buy some second hand gear, you know? Throw in there. Hung: I already got some at home. Sang Le: Yeah, bring it over. You know? 60 The interpreter initially translated this as sitting down with 'Mr An' but ultimately accepted, after relistening to the recording, that the reference was to Minh: see trial ts 3659 - 3660, 3682. 61 Exhibit 77, page 464. 62 Exhibit 77, pages 466 - 467. 63 Exhibit 77, page 467. -- 21 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 22 Hung: And we'll get some more from your mate's yard, throw in there. Sang Le: Yeah, throw in there. 62 Hung then expressed frustration at the changing plans being imposed on them and Sang Le calmed him down.64 63 The following exchange occurred in a telephone conversation between Nguyet and Hung on 9 December 2018:65 Hung: They haven't sent it. Because we have to set up um a business … got to have the registration, got to have the staff, just like a company, do you understand? Nguyet: Mm mm, I know. Mm. Hung: And then they will send over because if there is no company they are not able to send it. 64 At 7.36 pm on 9 December 2018, the listening device in Hung's car recorded a discussion between Hung, Sang Le and Minh as they apparently arrived at the Maddington premises, including about tidying the place up and connecting power.66 65 At 1.33 pm on 11 December 2018, the listening device in Hung's car captured the following discussion between Hung and Sang Le in the vehicle:67 Hung: It's fucking the same every time. It all goes pear shaped in the end. How many times now? What the fuck is happening? We can't be so fucking jinxed like that. -Short Pause- Hung: How much time and effort we've put in, how much money has gone into it and now, fuck. Sang Le: (wds) cancelled (wds) Hung: Well, he has cancelled our job now. -Short Break- 64 Exhibit 77, pages 468 - 470. 65 Exhibit 77, page 479. 66 Exhibit 77, pages 481 - 482. 67 Exhibit 77, page 484. -- 22 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 23 Hung: But I advised him on numerous occasions, I said everything is set at my end. Right? … Hung: So why can't they just send it over to us from Canada? Too much of fucking around. 66 Hung departed Perth for Vietnam on 12 December 2018, and returned to Perth on 25 December 2018. In a telephone discussion between Hung and a Nhung Hang (Ms Hang) at 12.26 pm on 12 December 2018, Hung said he was in Malaysia and his flight had been delayed and he would not be landing until 3.00 pm. Ms Hang told Hung that Mr An was expecting to meet Hung at the airport and was due to depart at 12.00 pm. Hung asked Ms Hang to ask Mr An to wait for him.68 67 After Hung's return to Perth, the listening device in Hung's car recorded Hung giving a long account to Sang Le about how he missed a flight from Malaysia and could not meet 'the brother' who had delayed his flight to China after Hung's flight was delayed.69 68 At 7.31 am on 31 December 2018, the listening device in Hung's car recorded him talking to a male person about signing for a delivery and cleaning up what sounds like the Maddington premises. Hung referred several times to the person making sure his 'work phone', which was the same as Hung's, was on and charged and that the man kept his eyes on the phone. The two men discussed going to Bunnings while apparently driving there.70 69 Minh was recorded travelling in Hung's car on 3 January 2019. On the evening of 3 January 2019, Hung was recorded saying, 'Tomorrow, if the situation plays out like it did today, then it would mean it's one hundred percent certain. Right?', 'If something happened we [can't] live around here in the future'.71 Later that morning, Hung and Minh discussed shaving their heads 'once this is done'.72 In his evidence, Minh explained that the transcript had attributed his words to Hung and Hung's words to him, and that Hung was saying that he would shave his head if the importation was successful.73 Minh's evidence was that in Vietnam, shaving a man's head meant that bad luck was gone.74 However, the 68 Exhibit 77, pages 488 - 489, 69 Exhibit 77, pages 491 - 493. 70 Exhibit 77, pages 513 - 522. 71 Exhibit 77, pages 535 - 536. 72 Exhibit 77, page 540. 73 Trial ts 1765 - 1770. 74 Trial ts 1355 - 1356. -- 23 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 24 translator's evidence was that the words were correctly attributed to the right speaker.75 At the end of the conversation, one of the men (Minh in the interpreter's view) said, 'Don't forget to bring the device'.76 70 At 1.02 pm on 4 January 2019, Hung spoke to Nguyet on the phone and the following exchange occurred:77 Nguyet: Mm. And how's work? Is it good or what's happening? Hung: No, it's not good. Got held up in Sydney. Nguyet: Really? Hung: Yeah, it's stuck there, not allowed to go um I'm not sure what's going on. It's a worry at the moment. Nguyet: Oh God. Hung: Like a needle up my arse right now. (Laughs) Nguyet: Oh my God. Holy shit. Hung: Like they're fucking checking or something. Nguyet: Still waiting to sort it out, right? Hung: Yeah. Nguyet: Mm. Hung: Live if it goes down smoothly otherwise die, suicide. Nguyet: Oh shit. Well, let me know when you have good news. Hung: Yeah, I will. 71 After referring to Sang Le being sick and them both being worried, Hung said:78 Nguyet: Shit. So when, how many days does it take for them to finish checking? Hung: Who knows? It's fucking taking too long, we'll have to let it go, we wouldn't dare to collect it. Fucking collect it and they set a trap to get us. 75 Trial ts 2095 - 2097. 76 Exhibit 77, page 541. 77 Exhibit 77, page 543. 78 Exhibit 77, pages 544 - 545. -- 24 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 25 Nguyet: Yeah yeah yeah. Hung: Do you understand? It goes to Customs, they fucking inspect it, you know? Nguyet: Mm. Just be careful, please. Hung: Mm. And if goes good no worries but if it doesn't go good we'll be dead. Nguyet: Mm mm, I understand. Hung: Now just wait um keep an ear out, see how it turns out so we know how to deal with it, you understand me? Nguyet: Mm, you've got to think it through and be very careful, alright? Hung: Mm. 72 Nguyet called Hung back at 3.54 pm on 4 January 2019. Hung said, 'A few more days and it will be okay'. When Nguyet asked if he was sure, Hung replied 'Sure or not, just have to wait and see now'.79 73 From about 3.45 pm on 5 January 2019, the listening device recorded Sang Le and Hung at the car. The recording contains beeping noises and statements from Hung and Sang Le which are consistent with them detecting the listening device.80 74 Viewed in context, these recordings strongly suggest that Hung had travelled to Vietnam to meet Mr An and communicated with him using an encrypted messaging service which required codes. The proposed meeting and discussion appear to concern a consignment of 'gear' from Canada to be delivered to a restaurant business in which Hung would acquire an interest. Dung coordinated Hung's communications with Mr An. There was an attempt to get legal advice about a restaurant lease, but this proved to be too complicated. A planned shipment was consequently cancelled, much to Hung's frustration. Hung and Sang Le decided to use the HKM business established at the Maddington premises in Minh's name as the consignment address. Hung engaged a fourth person to be at the premises with a 'work phone' to receive the delivery. Hung and Sang Le became concerned when the consignment 79 Exhibit 77, pages 546 - 547. 80 Exhibit 77, pages 548 - 551. -- 25 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 26 was held up in Sydney. Hung was aware that his phone might be under surveillance and was careful about what he said on the phone. 75 These covert recordings provide strong circumstantial evidence that Hung, Sang Le and Minh were parties to an agreement with Dung and Mr An to import methamphetamine in a consignment from Canada. They also corroborate the central aspects of Minh's evidence as to how the importation transpired from his perspective. Translation of covert recordings 76 Most of the covert recordings were of conversations in Vietnamese which were translated. The accuracy of the translations, particularly of conversations between Hung and his family members, was a contentious issue at trial. 77 Most of the translations were undertaken by Huynh-Lan Nguyen (HL Nguyen). He was born in Vietnam and spoke Vietnamese as his mother tongue. He migrated to Australia at the age of 15 years and graduated with a Bachelor of Arts majoring in interpretation and translation in 1989. He was accredited by the National Accreditation Authority for Translators and Interpreters as a Tier 3 interpreter, which is the professional level. He had worked as an interpreter including in court settings since his graduation.81 78 HL Nguyen spent 200 - 300 hours listening to the recorded conversations he was asked to translate, and became familiar with the voices of Hung, Sang Le and Minh. All three men spoke Vietnamese with a 'southerner accent'.82 79 HL Nguyen explained that some of Hung's conversation used a 'kiddy' rhyming slang which HL Nguyen used to speak to his sister as a child growing up in Vietnam.83 The technique was to add 'ken' to words and then swap vowel sounds, with the intention of speaking in a way others would not understand.84 Hung's trial counsel initially raised a concern about HL Nguyen's qualification to give evidence translating this slang, but ultimately conceded that it was admissible.85 In our view that concession was correctly made. The rhyming slang was a variant of the Vietnamese language which HL Nguyen had experienced as a child 81 Trial ts 1919 - 1922. 82 Trial ts 1922, 1924 - 1925. 83 Trial ts 1925 - 1926, 1951 - 1952. 84 For example, the Vietnamese word 'toi' would become 'ten koi'; trial ts 1958 - 1963. 85 Trial ts 1940 - 1941. -- 26 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 27 in Vietnam. He was qualified by a combination of study and experience to provide a translation of what was being said, and the jury required the assistance of an interpreter for the evidence to have any value.86 80 Hung's evidence was that he spoke to his brothers and sisters in the 'ken language' which came from the island of Samoa in Cambodia from which his family originated.87 Given HL Nguyen's description of the language, which was consistent with Minh's evidence that Hung spoke to his siblings in a common 'junky' type of language used by children in the 1980s,88 it was open to the jury to reject Hung's evidence as to the nature of the 'ken' language. 81 Most of Hung's recorded conversations with Dung noted at [52], [56] and [57] above, and most of his recorded conversations with Nguyet noted at [70] and [71] above, were in the rhyming slang or 'ken' language.89 While the discussion between Hung and Nguyet noted at [58] was generally in standard Vietnamese, the statement, 'They're monitoring my phone' was in rhyming slang. Otherwise, the covert recordings referred to above were in English or standard Vietnamese. 82 It is unnecessary in these reasons to survey the very extensive evidence about the interpretation of the covert recordings at trial. It is enough to observe that it was open to the jury to prefer the evidence of the qualified interpreters to the alternative interpretations offered by the appellants. There is nothing other than the appellants' evidence to indicate that the interpretations referred to above were inaccurate in any material respect. Further, the forensic force of the covert recordings derives from the overall picture painted by the totality of the recordings noted above, which does not turn on the correctness of the translation of a few words or phrases. The contentious issues raised at trial in relation to the accuracy of the interpretations do not require this court to conclude that it was not open to the jury to accept the accuracy of the interpretations in their essential aspects. 86 As to the criteria for admission of expert opinion evidence, see Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359 [122]. 87 Trial ts 2353 - 2355. 88 Trial ts 1358 - 1359, 1431 - 1432. 89 This is indicated by the use of italics in the transcript in exhibit 77; see trial ts 1943 - 1944. -- 27 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 28 Evidence of Hung's movements 83 The listening device placed in Hung's car was also a tracking device which police used to generate 'stop reports' showing where the vehicle stopped during the surveillance period.90 84 Hung's car was parked outside Sang Le's house on 24 occasions from 22 November 2018 to 6 January 2019: 22 November 2018, 23 November 2018 (twice), 24 November 2018, 28 November 2018, 1 December 2018, 6 December 2018, 7 December 2018, 8 December 2018 (twice), 9 December 2018, 11 December 2018, 25 December 2018, 26 December 2018, 27 December 2018, 31 December 2018, 1 January 2019, 2 January 2019, 3 January 2019 (twice), 5 January 2019, and 6 January 2019 (three times). 85 In the same period, Hung's car was parked outside Minh's residence on 19 occasions: 23 November 2018 (twice), 24 November 2018, 25 November 2018, 27 November 2018, 28 November 2018, 29 November 2018, 1 December 2018, 6 December 2018, 8 December 2018 (twice), 9 December 2018, 26 December 2018 (twice), 28 December 2018, 1 January 2019 (twice), 3 January 2019 and 5 January 2019. 86 Hung's car was parked outside the Maddington premises on 24 November 2018 (15 minutes), 25 November 2018 (17 minutes), 9 December 2018 (33 minutes) and 31 December 2018 (22 minutes).91 87 CCTV footage from Bunnings shows Hung attending the store on 31 December 2018 from 8.01 am to 8.47 am. A Bunnings employee confirmed that the receipt of 31 December 2018 was from the Maddington store.92 Items located in executing search warrants 88 When police searched the Maddington premises on 15 January 2019, they located a reminder for Minh to collect a package at Australia Post. When police obtained the package from Australia Post it was a cardboard box addressed to Minh at the Maddington premises containing banners which read 'HKM Used Kitchen Hospitality Enquiment (sic) Pty Ltd Grand Opening'.93 90 Trial ts 1178 - 1179; exhibit 44. 91 Exhibit 44. 92 Trial ts 1256 - 1258; exhibit 47. 93 Trial ts 502 - 506, 1191 - 1192. -- 28 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 29 89 When police executed a search warrant at Hung's address in Koondoola, he was reversing out of the driveway in his Toyota Aurion. A search of the car most relevantly located three phones in the centre console: a black Samsung S9, a white iPhone and a black Huawei.94 A black Optus phone, a black Alcatel phone, and multiple SIM cards, were located in the house.95 90 The search of Sang Le's house most relevantly located a black Samsung S8 mobile phone on the desk of a bedroom.96 91 A search of Hung's Bulwer Street premises most relevantly located a mobile phone in a bedroom, and a black Optus phone, a radio frequency detector and vacuum sealer on the kitchen bench.97 A receipt for a sign with the name 'HKM Used Hospitality Equipment' was also found on the kitchen counter.98 92 The Samsung S9 phone located in Hung's car and the Samsung S8 phone located in Sang Le's house were fitted with M2M or Moviestar SIM cards which are generally associated with Ciphr phones. Police were unable to access either phone.99 93 When police executed a search warrant at Minh's residence, Minh was not home but subsequently attended at about 9.55 am in his truck. A search of the truck located a folio of documents relating to HKM, including the company constitution and certificate of incorporation, Minh's family trust deed, and a bank statement.100 The consignment phone was also seized from Minh's truck.101 Tracking the consignment 94 The FedEx parcel containing the oven was tracked on the FedEx website on 99 occasions from 24 December 2018. Nineteen of those tracking events were from an IP address ending in 208: 2 January 2019 at 12.22.26, 12.22.39, 13.38.23, 13.38.50; 13.39.01, 18.56.13 and 18.56.18; 3 January 2019 at 08.57.30; 08.57.35; 11.57.40, 11.57.44; 13.15.23, 13.15.26, 15.31.07, 15.31.12; 3 January 2019 at 08.00.00, 94 Trial ts 1082 - 1083, 1087 - 1089. 95 Trial ts 1096 - 1098. 96 Trial ts 1114 - 1116. 97 Trial ts 1105 - 1106, 1109 - 1110. 98 Trial ts 1107. 99 Trial ts 1172 - 1175, 1254, 2186 - 2187, 2190 - 2191, 2215 - 2221. 100 Trial ts 1137 - 1143. 101 Trial ts 1137, 1143 - 1144, 1197. -- 29 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 30 08.00.05 and 4 January 2019 at 08.31.15 and 08.31.20. These time references are to Perth standard time on a 24-hour clock.102 95 Telstra records show that the 208 IP address was located at Sang Le's house in Shelley.103 96 Stop reports from Hung's car showed the car was parked near Sang Le's house when the consignment was tracked from the 208 IP address on 2 and 3 January 2019. The car was parked for 1 hour 33 minutes from 12.11 pm on 2 January 2019 and 1 hour 48 minutes from 1.59 pm on 3 January 2019.104 97 In a private home with a router provided by an internet service provider, the IP address indicated on the FedEx system will usually be the IP address of the router, rather than the device connecting to the internet through the router.105 98 A report of Dr Richard Adams, an expert called by Sang Le with whom the prosecution expert Thomas Fleming agreed, was to the effect that the FedEx data showed the router from which the internet was accessed rather than the device used to track the consignment. The range of a store-purchased router is variable but can extend to about 45 m for a mobile phone. It would also be theoretically possible to configure an Android phone so that, when connected to a router and left within range of the router, it could be remotely controlled.106 99 The fact that the FedEx consignment was repeatedly tracked from Sang Le's house constitutes significant circumstantial evidence of his participation in the agreement to import a commercial quantity of methamphetamine concealed in the oven. It also corroborates Minh's evidence that Sang Le was tracking the consignment. While the tracking was not necessarily done by a device operated by Sang Le, the fact that the tracking occurred on multiple occasions, including at times when the evidence did not place Hung or Minh at Sang Le's house, points to Sang Le's involvement. While the remote access described by Dr Adams was a theoretical possibility, Minh's evidence does not suggest that he possessed the technical knowledge or capability required to implement it. There was also no apparent reason for Minh to adopt a complicated scheme to avoid being connected with the tracking of the consignment. 102 Exhibit 17; exhibit 45; trial ts 699 - 706, 709 - 710, 1184 - 1188. 103 Trial ts 1183 - 1184. 104 Exhibit 45; trial ts 1186 - 1188. 105 Trial ts 724 - 726, 3547 - 3548. 106 Trial ts 731 - 739, 3548 - 3549, 3558 - 3559, 3566. -- 30 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 31 Minh knew his name was on the lease of the Maddington premises and he was a director of the company to which the consignment was addressed. Hung's evidence 100 Hung gave evidence at trial denying involvement in the importation of the oven containing a commercial quantity of methamphetamine. 101 Hung's evidence was that 'Mr An' was Tranh Vanh Anh, a retired man living in Vietnam with whom Hung planned to import rubies into Australia. That plan did not proceed when Mr Anh said 'not to do it now because of paperwork or something', and Mr Anh died on 31 August 2021 from COVID-19 complications. Hung denied undertaking any business involving illicit drugs with Mr Anh.107 102 Hung also denied being involved in any illegal drug trade with Sang Le, with whom he had discussed importing gold from Africa.108 Hung did not give evidence about involving Sang Le in the proposed ruby business. 103 Hung was involved with Minh in importing tobacco products without paying duty and trying to assist Minh to purchase a restaurant which Hung understood to be a genuine business proposal.109 104 When Minh expressed interest in establishing a business selling used kitchen equipment, Hung introduced him to Sang Le who mentioned that he had a place for the business.110 Hung was present at Minh's house and the Maddington premises when Minh and Sang Le discussed the lease of the Maddington premises which Minh would clean up. Hung denied that there was any discussion about drug importation.111 105 Hung said that he gave Minh some old kitchen equipment that he had from a lunch bar business he had operated.112 He drove Minh and Sang Le to an accountant's office but waited outside while the other two men did business inside. Hung was not involved in negotiating any terms of agreement between Minh and Sang Le.113 He denied having seen the 107 Trial ts 2474, 2478, 2480 - 2481, 2483. 108 Trial ts 2491 - 2493. 109 Trial ts 2495 - 2497, 2501 - 2502. 110 Trial ts 2503 - 2505. 111 Trial ts 2505 - 2506. 112 Trial ts 2508 - 2509. 113 Trial ts 2510. -- 31 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 32 folder of documents found in Minh's truck or having handed that folder to Minh.114 106 At Minh's request, Hung paid for a building sign which Minh had ordered from a business in Perth. He also ordered opening day signs from Vietnam which would be shipped to Minh. Hung helped Minh organise concreting for the Maddington premises and introduced a man called 'Adam' to Minh, who Minh employed to help clean up the Maddington premises. Hung went with Adam to Bunnings to get supplies. Hung also assisted in the clean-up of the Maddington premises.115 107 Hung admitted to using two mobile phones, one for his family and one for his 'illegal cigarette' business. He said that he picked up the Samsung S9 Ciphr phone found in his car from a chair at a cafe where he was having coffee and did not know the password.116 He said that the vacuum sealer was used for food.117 108 Hung denied having any involvement in importing or dealing with drugs during this time.118 He denied tracking the consignment from Canada or being in the company of anyone who, to Hung's knowledge, was doing so.119 109 It was well open to the jury to positively reject Hung's denial of involvement in the importation of the commercial quantity of methamphetamine. The jury could properly do so on credibility grounds having regard to the way that Hung, whose testimony extended over nine days, gave his evidence. Two examples from a long cross-examination of answers which could have affected the jury's assessment of Hung's credibility are: 1. Hung said that sometimes his friends other than Minh would go with him to visit Sang Le, but said he could not recall any of their names. He then said that he did not think he took anyone, but then said he did take a friend but could not remember whether it was one or two.120 114 Trial ts 2525. 115 Trial ts 2510 - 2516. 116 Trial ts 2518 - 2519. 117 Trial ts 2523 - 2524. 118 Trial ts 2516. 119 Trial ts 2610. 120 Trial ts 3055 - 3056. -- 32 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 33 2. When asked about the reference to a device in the conversation reproduced at [69] above, Hung said that the reference was to a machine but that he could not recall what Minh was referring to. When asked about his evidence-in-chief, Hung said he told his lawyer that it was a vacuum cleaner.121 The jury, having watched days of cross-examination, enjoyed a very considerable advantage over this court in assessing the impact of answers of this kind on the assessment of Hung's credibility. 110 Hung's evidence was also, in our view, inconsistent with the covert recordings, including in the following respects: 1. Hung's recorded telephone conversations with Dung about meetings with Mr An, the use of codes for contact and Hung's trips to Vietnam to meet Mr An, referred to at [52], [56] and [57] above are not consistent with merely a plan to establish a gemstone business. 2. The discussions between Hung and Sang Le referred to at [61] - [62] above indicate a connection between the business Hung had with Mr An, the business being done by Sang Le and Hung and the Maddington premises. The reference to just sending 'it over to us from Canada', in the context of the discussion of the cancelled job referred to at [65] above, shows that Hung and Sang Le were discussing the importation of the oven rather than gemstones or gold. 3. The instructions given by Hung to the person cleaning the Maddington premises noted at [68] above, including the repeated emphasis on monitoring the 'work phone', are inconsistent with Hung's evidence that he merely introduced 'Adam' to Minh and assisted with the cleanup. 4. Hung's discussions with Nguyet referred to at [70] - [72] above indicate an awareness that the consignment had been held up in Sydney. Hung was unable to give any satisfactory explanation of this conversation when it was put to him in cross- examination.122 121 Trial ts 3060. 122 See trial ts 3061 - 3065. -- 33 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 34 111 Further, Hung's evidence of finding a Ciphr phone simply lying on a cafe seat is highly implausible. 112 These aspects of the evidence lead us to reject Hung's denials of involvement in the importation of the commercial quantity of methamphetamine concealed in the oven. Sang Le's evidence 113 Sang Le also gave evidence at trial denying involvement in or knowledge of the importation of the oven containing the methamphetamine.123 114 In August 2018, Sang Le travelled to Ghana to try to establish a gold trading business, establishing a company to undertake gold tailings extraction. When he returned in late 2018, Sang Le discovered that he had contracted tuberculosis.124 On around 22 November 2018, Hung, who was a friend that Sang Le had not seen for about 14 or 18 months, visited Sang Le at his house. Hung said he had met Sang Le's former wife at a shop and been told that Sang Le was sick, so came to visit.125 115 Hung continued to visit and at one point they went out to lunch. During their discussions, Sang Le told Hung about the Maddington premises and Hung told Sang Le he had a friend who was looking for a property to park his truck and do business. Sang Le gave Hung the address for the Maddington premises and suggested Hung's friend go there and, if the property was suitable for him, to come and see Sang Le. Some time between 22 and 30 November 2018, Hung brought Minh to Sang Le's house and introduced him.126 116 Minh subsequently visited Sang Le's house either alone or with Hung or, on one or two occasions, with a young man. Minh would arrive either in his truck or a white Toyota car, or in Hung's car on some occasions when he came with Hung.127 117 Sang Le and Minh discussed the lease of the Maddington premises over about a week, and agreed upon a one-year lease, with a three-year option, and rent of $60,000 plus GST per annum. Sang Le had a friend, who was a real estate agent, prepare the lease and gave the lease to Minh at Minh's house. Minh later came to Sang Le's house in his truck and 123 Trial ts 3250, 3955 - 3956. 124 Trial ts 3265 - 3272, 3278 - 3280. 125 Trial ts 3325 - 3328. 126 Trial ts 3329 - 3331. 127 Trial ts 3370 - 3371. -- 34 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 35 gave Sang Le the signed lease, which Sang Le put in a file. Minh agreed to pay Sang Le a $6,000 deposit and $7,000 for Sang Le to use to demolish the burned house and clean up the premises. Minh did not transfer the amount to Sang Le's house as expected, but in late December showed up at Sang Le's house and gave him $10,000 cash in a sock. Police found this cash in the sock when they searched Sang Le's house on 15 January 2019.128 118 In their discussions, Minh told Sang Le that he wanted the Maddington premises to have a place to park his truck and that he also wanted to have a business related to kitchen equipment. Minh told Sang Le he wanted to set up a new company to run the business and a trust for his family. Minh asked Sang Le whether he knew of a good accountant and Sang Le recommended one he had dealt with. Sang Le went with Minh to the accountant's office to introduce him.129 119 Sang Le told Minh to give him receipts for the cost of cleaning up the Maddington premises and Sang Le would either reimburse him or deduct the money from the rent later. Minh gave Sang Le the Bunnings receipt police found at Sang Le's house under this arrangement.130 120 Sang Le did not have any involvement in ordering signs for Minh's business but did assist Minh to put up one sign at the Maddington premises when Minh requested his assistance.131 121 On one occasion, Hung brought a USB containing photographs of gemstones which he wanted to bring to Australia. Sang Le told him that the gemstones were zircon not rubies.132 122 At one of their meetings, Hung told Sang Le that a girl living in a house he rented in Bulwer Street, Ms Hang, had a network of associates in Vietnam who dealt in gold and diamonds. He offered to introduce Sang Le to the girl. Sang Le met with Ms Hang at a lunch on 1 December 2018. Hung picked him up and took him to the lunch and dropped him home afterwards. Ms Hang asked Sang Le to cooperate with her and her associates in his gold operation in Africa. Sang Le asked her questions which she could not answer, and Sang Le suggested she talk to her associates, which he understood included a Mr Quan who was a traffic control police officer. Six or seven days later, he met with 128 Trial ts 3371 - 3375. 129 Trial ts 3378 - 3379. 130 Trial ts 3375. 131 Trial ts 3380. 132 Trial ts 3330 - 3332. -- 35 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 36 Ms Hang at the Bulwer Street address. Hung was present but the discussion was between Sang Le and Ms Hang. At this second meeting, Ms Hang said that she wanted to send gold from Africa to Vietnam or Australia without paying tax. Sang Le said that he was not interested in this, and would not do anything illegal, but was happy to go further if they did it properly. He did not see Ms Hang again in Perth but did meet with her when he was in Melbourne in mid-December where the discussion was along similar lines.133 123 Sang Le's evidence was that the conversations on 8 December 2018 referred to at [60] - [62] above concerned the plan by Ms Hang to import gold into Australia without paying customs duties.134 He assumed that was also the topic of the discussion referred to at [65] above, but did not understand the reference to Canada.135 124 In early December 2018, Minh was at Sang Le's house and asked for the Wi-Fi password as he had run out of data. Sang Le gave Minh the password. Sang Le did not know about and never tracked the consignment that was coming via FedEx from Canada.136 The router was located in a bedroom at the front of Sang Le's house, about 12 - 15 m away from the front fence.137 125 Two to three days before police searched his house on 15 January 2019, Sang Le found the Samsung S8 Ciphr phone police located on the floor of the spare room. Sang Le did not know whose phone it was or how it got there and did not know the passcode. He charged the phone which had a flat battery but could not access it.138 126 As is the case with Hung's evidence, the jury had a very considerable advantage over this court in assessing the honesty and reliability of Sang Le's evidence. It was well open to the jury to positively reject Sang Le's account on credibility grounds. The following aspects of Sang Le's account in particular would lead us to reject his account as implausible. 127 First, when pressed to give details of his gold operation in Ghana over a lengthy cross-examination, Sang Le struggled to do so.139 His inability to provide satisfactory answers on this issue calls into question 133 Trial ts 3333 - 3337, 3359 - 3365, 3745 - 3751, 3758 - 3761, 3832, 3903 - 3907. 134 Trial ts 3446 - 3466, 3918 - 3940. 135 Trial ts 3496 - 3498. 136 Trial ts 3369 - 3370. 137 Trial ts 3539 - 3540, 3597 - 3598. 138 Trial ts 3376 - 3377. 139 Trial ts 3735 - 3744. -- 36 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 37 the existence of any genuine gold trading operation, and adversely impacts on his credibility generally. 128 Secondly, when asked by police when he was arrested on 15 January 2019, Sang Le denied seeing Hung regularly, contrary to the evidence that he met with Hung at least 23 times from 22 November 2018 to 6 January 2019 (which included a period of about 13 days when Hung was away in Vietnam).140 While not relied on as a lie evidencing guilt, the statements to police impact on Sang Le's credibility generally and, as put to him by the prosecutor,141 indicate he felt a need to distance himself from Hung. 129 Thirdly, Sang Le's account of his first meeting with Ms Hang on 1 December 2018 is inconsistent with the covert surveillance data. This covert surveillance data shows that Hung's car stopped at Sang Le's house for 18 minutes from 9.57 am on 1 December 2018, before travelling to Minh's house where it remained for 1 hour 3 minutes from 10.47 am.142 At 11.47 am - 12.05 pm, Hung and Sang Le are recorded travelling in Hung's car, during which Hung said that Ms Hang talks too much, and refers to telling Ms Hang that 'Family is one thing but business is another thing'. Sang Le later said, 'We need to be transparent you know. … As we work together we have to discuss things together'. Hung responded:143 'I'll talk to her when we get back later. In you (sic) presence, I'll talk to her and she will wake up, you know what I mean? 130 After stopping in Morley and Perth, Hung's car stopped in Northbridge for 54 minutes from 1.01 pm. The car then travelled to the Bulwer Street address where it stopped for 33 minutes from 2.08 pm.144 During the trip back to Bulwer Street, Hung, Sang Le and Ms Hang were recorded in Hung's car between 1.54 pm - 1.58 pm discussing undercover police operatives working in restaurants.145 131 This evidence indicates that Hung and Sang Le travelled from Sang Le's house to Minh's house where they remained for over an hour before Hung and Sang Le travelled to meet Ms Hang in Northbridge. Their discussion on the way to meet Ms Hang strongly suggests that she was involved in an existing arrangement. Hung, Sang Le and Ms Hang 140 Trial ts 3730 - 3733. 141 Trial ts 3733. 142 Exhibit 44. 143 Exhibit 77, page 448 - 449. 144 Exhibit 44. 145 Exhibit 77, page 451 - 453. -- 37 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 38 discussed undercover police operatives infiltrating restaurants as they drove back to the Bulwer Street property. These events are difficult to reconcile with Sang Le's evidence at trial that he was travelling to his first meeting with Ms Hang to see if she could assist with a legitimate gold trading business. 132 Fourthly, the recorded conversations between Sang Le and Hung in Hung's car on 8 December 2018 are inconsistent with Sang Le's account and, in our view, cannot be regarded as a discussion about gold smuggling. If, as Sang Le testified, he had said he wanted nothing to do with an illegal gold operation there would be no reason for him to offer to fly to Vietnam with Hung or for them to sit down and discuss details of the operation. There is no reasonable explanation for the references to Minh staying in Perth 'to get it all done', to cleaning the office at the Maddington premises and to 'buying some second-hand gear' as, on Sang Le's account, there was no connection between the proposed gold operation and the lease of the Maddington premises to Minh. Even in his evidence-in-chief, Sang Le's attempts to explain the discussions on 8 December 2018 appear contrived, implausible and often incoherent.146 133 Fifthly, it is unlikely that, after a long period of not seeing each other, Hung and Sang Le would meet so regularly (sometimes more than once a day) from 22 November 2018 to 6 January 2019 if they were not engaged in some business together. 134 Sixthly, it is highly unusual that there would be no telephone contact - either by text or voice calls - between two men who were meeting each other so regularly in person during this period. Sang Le's evidence that he tried to call Hung using an old number which did not work, and he never asked for Hung's number subsequently, is difficult to accept.147 A more likely explanation for the lack of phone communication between Hung and Sang Le is that they were using their Ciphr phones to communicate covertly as indicated by Minh's evidence. Sang Le's evidence that he simply found the Samsung S8 Ciphr phone drained of power on the floor, charged it up and kept it also strains credulity. 135 Seventhly, the recording of Sang Le and Hung apparently using a radio frequency detector to discover the surveillance device in Hung's 146 Trial ts 3918 - 3936. 147 Trial ts 3865 - 3867. -- 38 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 39 car and their reaction to its location, referred to at [73] above, is inconsistent with Sang Le's denial of knowledge about illegal activity. 136 Eighthly, it is highly unlikely that Sang Le was not involved in tracking the FedEx consignment at the various times referred to at [94] above when the tracking was done from his house. While it was theoretically possible for a person to remotely use the Wi-Fi router at Sang Le's house in the way Dr Adams described, it is difficult to accept that Minh would have the knowledge, skills or motivation to do so. 137 In our view, having regard to the above matters, it was well open to the jury to positively reject Sang Le's denials of the offending. Other defence evidence 138 Sang Le adduced the evidence of Dr Adams, which is discussed above. 139 Hung called Kitsana Muongsene, an investigator with Australian Border Force, to give general evidence about tobacco smuggling. While it may be accepted that this is a real problem for customs authorities, this evidence did not indicate that Hung was involved in tobacco smuggling. 140 Hung also called Nimal De Silva, a former employee of Crown Casino, as to Hung's extensive gambling habits. This evidence, which was presumably called to assist in explaining large quantities of cash found in Hung's possession, is of little significance in the determination of this appeal. 141 Of greater significance is the evidence of Aiden Hannan, who was called by Hung. Mr Hannan gave evidence of working for a few days cleaning up the Maddington premises for a Vietnamese man he only knew as 'Lenny'. Lenny paid him about $400 for doing this.148 142 In cross-examination, Mr Hannan said that a friend told him that someone called Hung was creating a business and gave him Hung's number. Mr Hannan spoke to Hung, who said that he was helping out a friend make a business and needed someone to do some cleaning and stuff like that. Lenny gave Mr Hannan a phone a couple of days before he first went to the Maddington premises. Hung came and picked Mr Hannan up and drove him to the Maddington premises after stopping at Bunnings. In the car, Hung told Mr Hannan to make sure he monitored the phone carefully for any deliveries. Hung later told Mr Hannan that a 148 Trial ts 3216 - 3219. -- 39 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 40 lot of deliveries were going to happen and tradespeople would be arriving to do stuff.149 143 After Mr Hannan's first visit to the Maddington premises, Lenny arrived at his house in a truck and paid him $400 in cash. Mr Hannan could not recall if Hung was with Lenny at this time.150 Lenny came and picked up the phone sometime after 'New Year's'.151 144 Text messages between the phone given to Mr Hannan and the phone given to Minh were put to Mr Hannan. He agreed he exchanged telephone calls with Lenny on 31 December 2018. He sent texts on the evening of 1 January 2019 asking when he was required the next day. Lenny responded, 'Let me check my mate then will let you know brother'. A text sent on the evening of 3 January 2019 asked Mr Hannan to 'come tomorrow about 8.30'. On the morning of 4 January 2019, Mr Hannan responded, saying he had slept through his alarms, was 'way too sore to get up' and did not think he would make it. After calls on 5 January 2019, there was no further activity on the phone. Mr Hannan thought he gave the phone back to Lenny either on 5 or 6 January 2019 but could not really remember.152 145 Mr Hannan confirmed that he was the person recorded with Hung at the Maddington premises on 31 December 2018 in the transcript noted at [68] above. 146 Mr Hannan accepted that he had convictions for various offences, including for possession of methamphetamine in 2015, 2019 and 2020.153 147 Mr Hannan's evidence is consistent with him being unwittingly engaged to be the person at the Maddington premises to receive the FedEx consignment of the oven in which methamphetamine was concealed. The initial arrangements for him to be at the Maddington premises were made by Hung, and the instructions to monitor the phone for deliveries were given by Hung. Mr Hannan's evidence departed from Minh's in that Minh described Hung giving them both the phones on 2 January 2019. The phone records indicate that this evidence must be incorrect. Mr Hannan's evidence and the phone records also show that Minh's evidence about the extent of his contact with 'Duncan' was incorrect and another manifestation of Minh's tendency to downplay the 149 Trial ts 3221 - 3227, 3243. 150 Trial ts 3221 - 3222. 151 Trial ts 3228. 152 Trial ts 3238 - 3240. 153 Trial ts 3220, 3236 - 3237. -- 40 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 41 extent of his involvement in the importation enterprise. But those differences between Mr Hannan's and Minh's evidence did not demand the rejection of other aspects of Minh's evidence, which Mr Hannan's evidence otherwise tended to corroborate. Particular matters raised by appellants' grounds of appeal 148 Hung's first ground of appeal contends: Compelling evidence proved beyond reasonable double that the crown witness was lying in his testimony and was a hostile witness whose evidence should be set-aside. The hostile evidence has led to miscarriage of justice. 149 This ground relates to the evidence given by Minh, which is discussed above. As explained above, there were compelling reasons for approaching Minh's evidence with great caution. However, the essential aspects of his account were corroborated in significant respects by the evidence of covert recordings, the movement of Hung's car, the items seized by police on 15 January 2019 and the evidence of the tracking of the FedEx consignment. Whether his evidence should be accepted was a matter for the jury, which had a considerable advantage over this court in assessing the credibility of his evidence. It was open to the jury to accept the essential aspects of his evidence as true. This ground is not established. 150 Sang Le's proposed first ground of appeal is that the guilty verdict was unreasonable and unsupported by the evidence. His submissions in support of that ground also focus on the deficiencies in Minh's evidence and should be rejected for the reasons explained above. 151 Hung's second ground of appeal is expressed in the following terms: Compelling evidence proved beyond reasonable double that the Interpreter who interpreted for both accused was professional non- qualifies in the native linguistic communication and led to miscarriage of justice. Sang Le's proposed second ground of appeal is to the same effect. 152 It appears from the submissions in support of this ground that it is focussed on HL Nguyen's interpretation of the rhyming slang Hung used to communicate with his siblings. An objection to the admissibility of that evidence was not pressed at trial, in our view correctly so. The limitations in interpreting conversations in that language, much of which HL Nguyen accepted was not intelligible, went to the weight of the -- 41 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 42 evidence rather than its admissibility. As noted above, only a few of the critical recordings were of conversations in the rhyming slang. It was open to the jury to accept the critical aspects of the translation which HL Nguyen was able to decipher as accurate. 153 The submissions in support of this ground also criticise the fact that HL Nguyen 'interpreted for both accused'. There is no merit to this complaint. HL Nguyen was not interpreting for either appellant in the trial. He was tasked with providing an independent interpretation of covertly recorded conversations in Vietnamese between various people. His task was confined to interpreting what was said by each of those persons. 154 Hung's fourth ground of appeal is expressed as follows: Miscarriage of Justice occasioned when prosecution uses untruthful accusation about the tracking of FebEx parcel to create doubtful evidence of Mr Le was possible involved in tracking the parcel, increased the culpability of Mr Le and directly given the inference that the consignee was not the not the only person involved in the importation of border controller drug. Sang Le's proposed fourth ground of appeal is to the same effect. 155 The submissions in relation to this ground indicate it is focussed mainly on the evidence of tracking the FedEx consignment, which is discussed above. The evidence does not indicate that Hung himself tracked the consignment, however he was present at Sang Le's house when the consignment was tracked by a device using the router at that house. Significantly, the covertly recorded conversation quoted at [70] - [71] above indicates that Hung was aware that the package was held up in Sydney so that he must have become aware of the results of the tracking by 4 January 2019. For the reasons explained above, it was open to the jury to regard the evidence as to the tracking of the FedEx consignment as supporting an inference that both Hung and Sang Le were party to an agreement to import the methamphetamine concealed in the oven in the FedEx parcel. 156 Hung's fifth ground of appeal is expressed in the following terms: The compelling evidence proved beyond reasonable doubt that Mr Le is a proper businessman, he came from a decent family with good educational back ground. Appellant and/or Mr Le was not involved in the any illegal activities of importation of border controlled drug into Australia. There was no so called agreement of any kind for the importation of border controlled drug. The allegation was fabricated by -- 42 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 43 a convicted prisoner who gave false evidence to reduce his culpability and distance himself for his wrongdoing. Sang Le's proposed fifth ground of appeal is to the same effect. 157 So far as this ground concerns the unreliability of Minh's evidence it is dealt with above. The other main aspect of the ground concerns evidence of Sang Le's good character. 158 Sang Le gave evidence that he had no criminal record other than traffic matters.154 He had undertaken part of a medical degree in Vietnam, had studied Computer Science and Business Administration and graduated with a Bachelor of Commerce majoring in Property and Finance in 2012.155 He described his employment in legitimate industries including the proposed gold trading business in Ghana. 159 Evidence as to an accused's good character is relevant both in determining the likelihood that the accused would commit offences of the nature alleged and in assessing the credibility of the accused, if he or she gives evidence.156 However, evidence of good character will rarely preclude a jury from being satisfied beyond reasonable doubt that an accused committed an offence where that is established by the evidence. 160 In the present case, Sang Le's good character and status as a 'proper businessman' were contested issues at trial, given that there was evidence that he had previously engaged in drug dealing with Hung and the prosecution challenge as to the authenticity of the Ghana gold business. However, even if Sang Le's good character and status as a 'proper businessman' are accepted, that does not foreclose the conclusion that the other evidence described above establishes beyond reasonable doubt that Sang Le was party to an agreement to import the commercial quantity of methamphetamine concealed in the oven consigned from Canada. Conclusion as to unreasonable verdict grounds 161 Our review of the trial record leads us to conclude that there is only one reasonable inference open on the evidence considered as a whole. That inference is that Hung agreed with at least one person in Vietnam to import a commercial quantity of methamphetamine concealed in an oven from Canada to Australia and that the methamphetamine was imported in accordance with the agreement. Hung brought Sang Le and 154 Trial ts 3251. 155 Trial ts 3273 - 3277. 156 See NTE v The State of Western Australia [2024] WASCA 99 [108]; Sethi v The State of Western Australia [2020] WASCA 173 [70]. -- 43 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 44 Minh into that agreement, in which they agreed to participate to assist in the receipt of the methamphetamine contained in the oven, before the importation occurred. Having regard to the combined force of all of the evidence, we regard the prosecution case in support of those propositions as strong and compelling. 162 For the reasons explained above, it was open to the jury to reject the denials of Hung and Sang Le and be satisfied beyond reasonable doubt that each appellant committed the charged offence. Our review of the trial record does not leave us in any doubt that each appellant is guilty of the charged importation offence. Even if we did have a reasonable doubt as to the appellants' guilt, that doubt would be capable of being assuaged by the advantage which the jury had in seeing and hearing the large volume of evidence in a very long trial as it was given. The grounds of appeal which in effect assert that the guilty verdicts are unreasonable or cannot be supported having regard to the evidence are not even arguably established. 163 Hung's grounds and submissions are directed towards his conviction of the importation offence charged in count 1 of the indictment. The grounds and submissions in the present appeal do not appear to concern the offence of failing to comply with a data access order157 charged in count 2 of the indictment.158 To any extent that the grounds are directed to count 2, they are not established. The only live issue at trial in relation to the data access order offence was whether the prosecution had proved, beyond reasonable doubt, that Hung was capable of complying with the requirements of the data access order. That is, the only real issue was whether the prosecution had proved that Hung knew or was able to find the PIN code or password for the Samsung S9 Ciphr phone which police located in his car.159 If the jury accepted that Hung was a party to the agreement to import the commercial quantity of methamphetamine concealed in the oven, it was well open to the jury to reject Hung's account of finding the Ciphr phone on a cafe seat and not knowing the passcode, and to be satisfied beyond reasonable doubt that he knew how to access the phone that Minh gave evidence of him using. 157 Obtained under s 3LA(2) of the Crimes Act. 158 Contrary to s 3LA(5) of the Crimes Act. 159 See the trial judge's direction at trial ts 4273 - 4276. -- 44 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 45 Decision not to discharge the jury 164 The third ground of Hung's appeal and the proposed third ground of Sang Le's appeal are in similar terms and contend that the failure by the trial judge to discharge the jury and vacate the trial under s 116 of the Criminal Procedure Act 2004 (WA) led to a miscarriage of justice. Section 116 relevantly provides that: (1) The powers in this section may be exercised at any time before a jury gives its verdict. (2) The judge may discharge the jury from giving its verdict on a charge if the judge is satisfied it is in the interests of justice to do so. (3) If under subsection (2) or another enactment a jury is discharged from giving its verdict in a trial of a charge, the trial is discontinued. 165 The general principles governing appeals against conviction where a miscarriage of justice is alleged to have arisen in circumstances where a trial judge refused to discharge a jury under s 116 are well established and need not be repeated here.160 166 The application of both appellants at trial for the judge to discharge the jury arose in the following circumstances. 167 In the course of the prosecutor's cross-examination of Sang Le about his gold trading business, after he had been asked questions about the persons involved in that business, the following exchange occurred in the presence of the jury:161 So Mr Bright, you say, is in Ghana?---Yes, sir. And where's Mr Achilles Doropoulos?---In Perth, sir. Is he coming to give evidence to support your story?---If I want, I can call him, come. Okay. What about Nhung Hang? Is she coming here to support your evidence?---I haven't contact her for three, four years because I - I can't contact her. I try. She lives in Melbourne, doesn't she?---Yeah. 160 See the summary in Walsh v The State of Western Australia [2024] WASCA 78 [83] - [90]. 161 Trial ts 3763 - 3765. -- 45 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 46 And you haven't been in touch - - - BRENNAN, MR: Your Honour, may I object to this course of cross- examination? The inference out of it is that the burden of proof rests upon an accused person to prove his case, and - - - SWEENEY DCJ: I - I will giving a direction about that, Mr Brennan. BRENNAN, MR: But to say, 'Who are you calling' and, 'Are you going to bring all this paperwork and people', that's not a proper - that's not - that's assuming - assuming the defence has to prove its case. We're answering the Crown case. SWEENEY DCJ: I don't - I don't consider it's improper for counsel to ask whether other evidence is to be adduced, but I will be giving a direction in my charge to the jury that the defence is under no obligation to adduce - - - BRENNAN, MR: Even give evidence. SWEENEY DCJ: - - - any evidence at all. And so the jury have just heard that. So that's - that is certainly the law, that the defence is under no obligation to adduce any evidence at all. But I don't consider it improper for a prosecutor to ask whether further evidence is being called or whether anyone is being called, or whether documents exist. BRENNAN, MR: But - but the imperative is that there's some burden on us to run every rabbit down every burrow - - - SWEENEY DCJ: Well, if that is what's - - - BRENNAN, MR: - - - which is - that's - - - SWEENEY DCJ: If that is what's being implied - - - BRENNAN, MR: Well - - - - SWEENEY DCJ: - - - I've just directed the jury that's not the case and I will give them that direction again. BRENNAN, MR: Thank you, your Honour. SWEENEY DCJ: But I don't consider the cross-examination is actually improper, providing the jury understand that principle. Yes, Mr Bevilacqua. BEVILACQUA, MR: So you haven't contacted Nhung Hang about this case?---No, I haven't contact her yet. -- 46 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 47 And the only document you've given us is the certificate of incorporation of the company, Amdosa?---What else you need from me, sir? Well, I'm - I'm asking, you are going to bring anything else?---That the paper I have. If you want anything, I can extract from my email. It's not a question of what I want. I'm just asking you what you propose to do. BRENNAN, MR: Well - - - SWEENEY DCJ: Well, Mr - - - BRENNAN, MR: Your Honour, that's - - - SWEENEY DCJ: Mr Bevilacqua, the examination-in-chief is finished, so you know what he has put before you. FISHER, MS: And I might - I might seek to make - - - BEVILACQUA, MR: There's re-examination. FISHER, MS: - - - submissions in respect of this matter in the absence of the jury. I know it relates to Mr Le, but indirectly, it concerns accused persons in this trial. 168 The jury was sent out and the trial judge received submissions about the proper scope of the prosecutor's cross-examination on this issue. The trial judge ruled that the prosecutor should not ask questions which implied that Sang Le was under an obligation to produce further corroborative evidence of what they had said.162 169 By the time the jury returned to the courtroom it was 4.00 pm and it was decided not to proceed further with the evidence that day. Before sending the jury home for the day, the trial judge said:163 All right, members of the jury. I just want to reiterate an instruction that I gave you just before you retired. And I'll be reminding you of - I will be reminding you of this later when I direct you on the law. But I just want to reiterate now, at this point, that it is important that you understand that the burden of proving its allegations rests upon the Crown. There is no obligation upon an accused person to go into evidence - by which I mean, to give evidence himself, or to call any witness, or to produce any documentary evidence, or any evidence. He is under no obligation to prove anything to you. 162 Trial ts 3778 - 3779. 163 Trial ts 3786. -- 47 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 48 170 The following morning, before evidence resumed, both appellants applied for the jury to be discharged and the trial aborted, essentially on the basis that the exchange set out at [167] above created prejudice to both accused that could not be cured by a direction from the trial judge. From Hung's perspective, the main concern was that the jury would speculate why Ms Hang, who the evidence indicated had a very close relationship with Hung, was not being called. 171 The trial judge refused to discharge the jury on the basis that any prejudice to the jury that could be cured by direction, had already been cured by direction and that a direction which reinforced and added to the direction that had already been given could be further given both at that stage of the trial and in the charge to the jury.164 172 The trial judge made some observations about the permissible scope of cross-examination. Her Honour indicated that she was 'not completely persuaded that it's improper for a prosecutor to ask whether a witness is going to be called or whether we are going to hear from a witness'.165 However, the trial judge said that the situation was not clear cut, referring to the Victorian Court of Appeal's decision in Frengos v The Queen.166 Recognising that others may take a different view, her Honour resolved to determine the application to discharge the jury on the basis that this questioning is improper.167 However, on that basis, the trial judge considered that the matter was capable of being cured by direction.168 After stating the direction she proposed to give, the trial judge said:169 I do consider there has been some prejudice to each accused by means of the cross-examination. Having said that, the cross-examination should not be divorced from the reality of the trial situation. The trial has been going now for some 11 weeks and multiple names have been mentioned in passing, some more important than others. And the jury will, without doubt, have noticed that they are not hearing any evidence from various people whose names have cropped up in the course of evidence. That is not a secret. It is a simple fact that there are various names that have been mentioned in this trial, and those people are not witnesses in the case. Had the prosecution not conducted the impugned cross-examination, it would still have been necessary for me 164 Trial ts 3821. 165 Trial ts 3821, 3823. 166 Frengos v The Queen [2012] VSCA 18 [23] - [27]. 167 Trial ts 3823 - 3824. 168 Trial ts 3824. 169 Trial ts 3825. -- 48 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 49 to give a direction in terms of the usual direction about not speculating about witness who have not been called, and not engaging in guesswork. And it would also have been necessary to give the usual direction about the standard of proof, the burden of proof, and the fact that there is no obligation on an accused to prove anything in a criminal trial - and that there is no obligation on an accused to testify. It must be presumed that a jury is capable of following such instructions and will follow such instructions. 173 The trial judge then set some parameters for any future questioning by the prosecutor. As the prosecutor did not ask any questions in relation to this issue, it is unnecessary to refer to those parameters. Counsel for all parties indicated that they did not wish to say anything about the proposed direction.170 When the jury returned, the trial judge gave the jury the following direction:171 I will give you this direction again at the end of the trial when I give you directions as to law, but I want to give it to you now. I want to reiterate now, at this point, it's important that you understand that the burden of proving its allegations rests upon the Crown at all times. There's no obligation upon an accused person to go into evidence, by which I mean, to give evidence himself or to call any witness or to produce any documentary evidence, or any evidence. An accused person is under no obligation to prove anything to you and you must not draw any inference against an accused person on the basis that he did not call a particular witness or produce some particular piece of evidence. In addition, decisions as to how the case is conducted, are decisions made by counsel in the case. There may be any number of reasons and factors, including Rules of Evidence and also practical considerations as to why a potential witness is or is not called. You judge the case on the whole of the evidence and that evidence is the evidence from the witnesses who were called and any exhibits which have been put into evidence. You mustn't speculate about matters which are not the subject of evidence. That includes not speculating about what any potential witness might have said, had they been called, and it includes not speculating about any reasons as to why any potential witness might not have been called by any party. It will not assist you to engage in guesswork about those matters and you may guess wrongly and it's important that you simply focus on the evidence that has been led and not speculate about matters which are not the subject of evidence. 170 Trial ts 3826. 171 Trial ts 3830 - 3831. -- 49 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 50 And particularly, it is important that you remember an accused person is under no obligation to prove anything to you and you mustn't draw any inference against an accused person on the basis that he did not call a particular potential witness or produce some particular piece of evidence. So that is the direction which I wish to give you[.] 174 On resumption of the evidence, the prosecutor then effectively moved on to a different topic. In his closing address, while inviting the jury to reject the appellants' evidence about the gold trading proposal and other matters, the prosecutor did not refer to the failure of the accused to adduce corroborating evidence. 175 In the trial judge's charge to the jury, after giving standard directions about the onus and standard of proof, the trial judge directed:172 Don't guess or speculate about matters that are not in evidence or what potential witnesses might have said had they been called to testify. That includes not speculating about what any witness might have said, had they been called, and it includes not speculating about any reasons as to why any potential witness might not have been called by any party. Decisions as to how the case is conducted are decisions made by counsel in the case. There may be any number of reasons and factors including Rules of Evidence and also practical considerations as to why a potential witness is or is not called in a case. It won't assist you to engage in guesswork about those matters and you may guess wrongly. So it's important you simply focus on the evidence which has been led and not speculate about matters which are not the subject of evidence. Particularly it's important that you remember, as I said a moment ago, that an accused person is under no obligation to prove anything or go into evidence at all, or call any witnesses, so you mustn't draw any inference against an accused person on the basis that he didn't call a particular potential witness or produce some particular piece of evidence. 176 Before this court, the respondent accepts that the questions set out at [167] above were not permitted and should not have been asked, and that potential prejudice arose for the accused from the questions being asked. However, the respondent submits that the trial judge's directions overcame that prejudice so that no miscarriage of justice arose.173 177 Given the respondent's concession, we will deal with this ground on the assumption (without deciding) that the impugned questions should not have been asked as they might suggest that the accused had an obligation to adduce evidence corroborating their account. On that 172 Trial ts 4228 - 4229. 173 Respondent's submissions in Hung's appeal at [134], adopted in Sang Le's appeal, appeal ts 69. -- 50 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 51 assumption, there was no realistic prospect that, after hearing the trial judge's clear and repeated directions, the jury might think that this was the case. Given those directions, there was no infringement of the appellants' right to a fair trial or any other miscarriage of justice. To the extent that the prosecutor's questions amounted to an irregularity in the trial, the irregularity was not material in the sense that it could realistically have affected the reasoning of the jury to its verdict.174 The trial judge's decision not to discharge the jury on the basis that any prejudice to the appellants could be cured by direction was plainly correct. No arguable miscarriage of justice or wrong decision on a question of law arises in these circumstances. 178 The appellants submit, in effect, that the jury may not have been able to remember and understand the trial judge's directions as to this issue in a long and complicated trial. However, as has been said on many occasions, the system of justice requires the assumption, generally, that juries understand and follow instructions that are given to them by trial judges.175 There was nothing difficult to understand in the direction which the trial judge gave on this issue. The fact that the direction was repeated, including in close temporal proximity to the impugned questions being asked, would facilitate the jury's understanding and recollection of the direction. The direction made clear to the jury that any implication in the impugned questions that the accused bore an onus of adducing corroborating evidence was wrong. Direction about expert evidence 179 Proposed ground 6 of Sang Le's appeal is, in effect, that a miscarriage of justice was occasioned, and the trial judge made a wrong decision on a question of law, when she directed the jury 'they can disbelieve Dr Adam's [sic] expert opinion'. Although not the subject of a separate ground of appeal, Hung also advances submissions to this effect in support of his fourth ground of appeal. 180 The trial judge did not direct the jury in these terms. Rather the trial judge gave the jury a general expert evidence direction in orthodox terms. 181 This part of the trial judge's direction began by identifying the expert evidence, which included but was by no means limited to the 174 See Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 [3]. 175 See for example Walsh [90]. -- 51 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 52 evidence of Mr Fleming and Dr Adams as to the tracking of the FedEx parcel from an IP address.176 Her Honour then said:177 I'll talk more about the interpreters shortly, but, before that, I want to give you a general direction which applies to all expert witnesses. That just because a witness has expertise in an area, doesn't mean you are obliged to accept his or her evidence. What evidence you accept is always a decision for you to make. You're still free to accept all, or none, or some of the evidence of even an expert witness. Now, if there's no challenge to the evidence that's given by an expert witness, if there was no cross-examination to suggest that he was being tackled on a particular area of his evidence, then you may have little reason to reject his evidence. But that still remains a matter for you. But it is fair to say that the two witnesses who talked about the tracking evidence, Mr Fleming and Dr Adam[s], were not disagreeing with each other. [Her Honour then referred to other expert evidence] 182 This direction recognised the jury's exclusive role as the fact- finding tribunal. Juries are not bound to accept and act upon even uncontradicted expert evidence, although they are not entitled to disregard it capriciously or give a verdict contrary to expert evidence which is not contradicted by any other evidence.178 183 Here, the guilty verdict was not contrary to the uncontradicted evidence of Dr Adams for the reasons explained above. There was no realistic prospect that the jury might capriciously disregard the evidence of Dr Adams with which Mr Fleming agreed. The direction given did not involve any material wrong decision on a question of law or give rise to a miscarriage of justice in these circumstances. That is not to deny that some greater elaboration of when a jury can act contrary to uncontradicted expert evidence might be required in other circumstances. Application to adduce additional evidence in the appeals 184 At the appeal hearing, both appellants made an oral application to adduce affidavits sworn by Hung on 1 July 2025 and 26 November 2025 as additional evidence in the appeals. We said that we would receive the evidence provisionally and rule on whether to grant leave to adduce the 176 Trial ts 4238 - 4239. 177 Trial ts 4239. 178 See Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 [13], [124] - [125]. -- 52 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 53 additional evidence in these reasons. Hung was cross-examined on the affidavits. 185 The grounds of appeal do not assert that a miscarriage of justice arose from the absence of the proposed additional evidence at trial. However, we will address the question on its merits given that the appellants are self-represented, the respondent has responded to the contention and any deficiency in the grounds of appeal could be cured by amendment. 186 The general principles as to when a miscarriage of justice will arise from an absence of evidence at trial are well established.179 There is a distinction between fresh evidence, on the one hand, and new evidence, on the other. Fresh evidence is evidence that either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. New evidence is evidence that was available at trial or that could, with reasonable diligence, have been obtained or discovered for use at the trial.180 187 An appellate court will not allow an appeal against conviction on the basis of new evidence, as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or raises such a doubt that the court is satisfied that the appellant should not have been convicted.181 188 An appellate court will not allow an appeal against conviction on the basis of fresh evidence, as distinct from new evidence, unless there is a 'significant possibility' that, on the basis of all the admissible evidence (that is, the fresh evidence and the evidence given at trial), a jury, acting reasonably, would have acquitted the appellant.182 In assessing whether such a significant possibility exists, the appellate court is required to form some view as to the credibility of the fresh evidence. It will assess whether the additional evidence is sufficiently cogent and plausible to be capable of leading a jury to have a reasonable doubt about any element of the charged offence. Evidence that is not apparently credible or which is incapable of belief, when considered in conjunction 179 See Donald Atkins (a pseudonym) v The State of Western Australia [No 3] [2026] WASCA 93 [125] - [126], from which the following summary is taken. 180 Beamish v The Queen [2005] WASCA 62 [9]. 181 Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 - 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA). 182 Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399 (Gibbs CJ), 402 (Mason & Deane JJ); Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ), 301 - 302 (Toohey & Gaudron JJ). -- 53 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 54 with the other evidence given in the case, may not give rise to a significant possibility that the jury might have acquitted the accused.183 189 In the present case, the proposed additional evidence of Hung is to the following effect. Sometime near the end of December 2018, Hung and Minh visited Sang Le's house to discuss the tenancy matter. Hung saw Minh sitting in his Nissan car playing with his mobile phone. The car was parked in Sang Le's driveway about 12 m away from the house. When Hung asked Minh if they should enter Sang Le's house, Minh said that he needed to get some information from the mobile phone before doing so. One or two days later, Hung and Minh again visited Sang Le's house. When Hung arrived, he saw Minh's truck parked on the side of the road. Minh was sitting in the truck with a young Asian man. As Hung and Minh went to the house, Hung asked Minh whether the young man wanted to come in. Minh said to just let the young man wait in the truck. Hung's second affidavit also deposes 'that particular male Asian later seen moving around' Sang Le's house, although he does not clearly state whether he personally observed the young man doing so.184 190 This evidence was clearly known to Hung at trial, and so is to be classified as new evidence rather than fresh evidence from his perspective. Plainly, the proposed additional evidence does not demonstrate that either appellant is innocent or raise such a doubt about their guilt that they should not have been convicted. 191 There is no evidence as to whether Sang Le was aware of Hung's observations at the time of trial, so that the proposed additional evidence might be fresh evidence from his perspective. However, even if the proposed additional evidence is regarded as fresh evidence its absence from trial does not give rise to a miscarriage of justice. 192 The proposed evidence lacks cogency as there is no reasonable explanation as to why Hung did not give this evidence at trial. Hung's answers to questions in cross-examination about his understanding of the significance of the issue of the FedEx consignment being tracked from Sang Le's house were difficult to accept and count against giving any weight to the proposed additional evidence. 193 Further, even accepting the proposed additional evidence at face value, it does no more than suggest that Minh or some other person may have had the opportunity to access the internet through the router at 183 Gallagher (396 - 399 per Gibbs CJ, 400 - 403 per Mason & Deane JJ). 184 Appeal exhibits 1 and 2. -- 54 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 55 Sang Le's house. That was apparent on the evidence led at trial. Even if the proposed additional evidence were accepted it would not significantly detract from the strength of the prosecution case against both appellants, described above. 194 Having regard to these matters, there is no significant possibility that a jury, acting reasonably, would have acquitted either appellant had the proposed additional evidence been available at trial. The absence of that evidence at trial did not give rise to a miscarriage of justice whether or not the evidence is classified as fresh or new evidence. In these circumstances, it is not in the interests of justice to give leave to adduce the proposed additional evidence in the appeal. Orders 195 For the above reasons, none of the appellants' grounds of appeal have any reasonable prospect of succeeding. In Hung's case, leave to appeal should be refused and the appeal dismissed. As none of Sang Le's proposed grounds of appeal have any reasonable prospect of succeeding, there would be no utility in granting him an extension of time in which to file his appellant's case. Therefore, we would make the following orders: CACR 98 of 2024: Sang Le's appeal 1. The appellant's oral application to adduce the affidavits of Thanh Hung Nguyen sworn 1 July 2025 and 26 November 2025 as additional evidence in the appeal is dismissed. 2. The appellant's application in an appeal filed on 1 October 2025, seeking an extension of time to file his appellant's case, is dismissed. 3. The appeal remains dismissed pursuant to order 2 of the orders made by this court on 31 July 2025. CACR 113 of 2024: Hung's appeal 1. The appellant's oral application to adduce his affidavits sworn 1 July 2025 and 26 November 2025 as additional evidence in the appeal is dismissed. 2. Leave to appeal is refused on all grounds of appeal. 3. The appeal is dismissed. -- 55 of 56 -- [2026] WASCA 117 JUDGMENT OF THE COURT Page 56 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. TI Associate to the Hon Justice Mitchell 28 AUGUST 2026 -- 56 of 56 --