and Dung Thi Truong v The Queen

[2013] VSCA 327

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0284
DUNG THI TRUONG	Appellant
v
THE QUEEN	Respondent

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JUDGES	NETTLE, REDLICH and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 November 2013
DATE OF JUDGMENT	15 November 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 327
JUDGMENT APPEALED FROM	DPP (Cth) v Truong (Unreported, County Court of Victoria, Judge Allen, 21-24 August 2012)

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CRIMINAL LAW – Conviction – Whether verdict unsafe and unsatisfactory – Principal witness unreliable – Whether direct and circumstantial evidence sufficient to exclude hypothesis that appellant unwittingly imported heroin – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D A Dann	C Marshall & Associates
For the Crown	Mr D D Gurvich	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

1. I invite Redlich JA to deliver the first judgment.

REDLICH JA:

1. On 25 August 2012 the appellant, who is now aged 63, was convicted of a single charge of importing a marketable quantity of a border controlled drug following an eight and a half week trial in the County Court.

1. The appellant was tried jointly with three other defendants in the same indictment.  Each was alleged to have acted as drug importers for one Quang Minh Vo (‘Vo’).  Two of the defendants successfully applied to have the jury discharged from delivering a verdict following what was said to be inappropriate submissions in the closing address by the prosecutor.  The appellant and a co-offender Minh Thanh Truong proceeded to verdict and were convicted by the jury on 25 August 2012. 

1. On 24 June 2013, Coghlan JA granted the appellant leave to appeal against conviction on a single ground that the verdict of guilty was unsafe and unsatisfactory.  After hearing oral submissions his Honour stated that he found the ground reasonably arguable but did not think that the ground had much merit. 

1. The appellant, also referred to as ‘Chi Tu’, was married to Teo Lam (also referred to as ‘Anh Tu’) an associate to Vo.  Vo was the subject of telephone intercepts.  His modus operandi was to seek out potential drug couriers and arrange for them to travel from Melbourne to Vietnam where they would be provided with heroin to take back to Australia.  The couriers received the heroin in Vietnam in the form of pellets wrapped in condoms.  They would secrete the pellets in their anus before returning to Australia. 

1. It was acknowledged in the course of oral argument that the following matters were not in issue at the trial.  The appellant travelled from Australia to Vietnam in November 2008, returning with two of her grandchildren on 6 February 2009.  They were collected from the airport by her son and driven home.  Second, that on her return to Australia from Vietnam she brought into the country pellets of heroin that were wrapped in condoms.  Third, that within a few hours of her returning to her home in Melbourne, Vo went to her house and collected the pellets of heroin.  Fourthly, Vo paid for the appellant’s services as a courier the same day although there was a dispute as to whom Vo paid.  Fifth, there was a transfer of that money by the appellant’s husband and someone purporting to be the appellant on the following day.

1. In addition to these salient features, Vo gave other significant evidence which was disputed at the trial.  He testified that he had made arrangements with the appellant that she travel to Vietnam and bring back heroin in the form of pellets and that she would be paid for such services.  He paid for her airfares.  Second, Vo testified that he collected the pellets from the appellant at her home very shortly after she returned there on the day that she arrived back in Australia.  He paid the appellant for her services.  Each of these matters was challenged during the course of Vo’s cross-examination. 

1. It was submitted by the appellant before us that it was not open to the jury to exclude the hypothesis that the heroin pellets had been concealed in luggage brought into Australia by the appellant and that Vo and her husband had ‘duped her’ into unwittingly bringing the heroin into Australia. 

1. The foundation for this innocent hypothesis was raised in the closing address of counsel at trial, and was to the effect that the pellets of heroin must have been retrieved by Vo from the appellant’s luggage when he went to the house very shortly after her return home.  It was acknowledged in oral argument that such a suggestion had not been put to Vo despite it being a critical assertion of fact upon which the innocent hypothesis rested.  Neither had it been suggested to Vo in cross-examination that the appellant had not brought the heroin pellets into Australia concealed in her body.  What was put to Vo in purported compliance with the rule in Browne v Dunn[1] was —

If heroin was brought back into Australia when the person you called Chi Tu and her two children returned, that you know that any such heroin was brought in without her knowledge?

[1](1893) 6 R 67.

1. The appellant did not give evidence at her trial but her record of interview of 18 March 2009 was tendered.  In that interview, she told investigators that at the time of her return to Australia on 6 February, her husband was sick and was at the hospital and could not pick her up.  She was driven home by her son.  Her husband had not come back from hospital when she arrived home.  She told investigators that nobody visited her at home that afternoon after she returned.  She denied that she knew the person Vo.  The content of an intercepted phone call of Vo of that afternoon was then put to her, that Vo had gone to her address and picked up ‘three wine bottles’ that she had brought back.  She stated that she had not brought any wine back.  It was put to her that the wine bottles were the pellets of heroin.  She stated that in Vietnam she would not have accepted anything from anyone to bring back to Australia.  She was asked whether she could explain why Vo had paid several thousand dollars to her husband and son for heroin on that day.  She had no explanation and repeated that no-one had come to her home that day. 

1. The prosecution case that the appellant knowingly imported heroin into Australia from Vietnam was supported not only by the evidence of Vo but by telephone intercepts of conversations involving Vo and other persons including the appellant’s husband.  The Crown relied upon the sequence or timing of events on 6 February involving the meeting of the appellant’s husband and son with Vo and their arrival at Vo’s home as depicted in surveillance photographs taken on the afternoon of that day.  The Crown relied also on the timing and sequence of telephone intercepts of 6 February, and on documentary evidence of money transfers purporting to have been made by the appellant and her husband the day after she returned from Vietnam, as well as upon handwritten notes seized from Vo’s rubbish bin which referred to Chi Tu and her husband and to the amount of $9,000.  Each of these matters was said to corroborate the account of Vo.  If that evidence and the circumstantial and supporting evidence was accepted, the case against the appellant was overwhelming.

1. The Crown also contended that the appellant had lied in her record of interview.  It will be apparent from those passages of her record of interview to which I have already referred that the appellant’s account was inconsistent with the hypothesis raised by her counsel that Vo had come to her house and taken the pellets from her luggage that afternoon without her knowledge.

1. The appellant’s argument that the verdict was unsafe and unsatisfactory rested upon three propositions, each of which requires some elucidation.  First, it was submitted that the credibility of Vo was so affected that the jury should have had a reasonable doubt about whether he had arranged with the appellant that she bring heroin into Australia, and that they should also have doubted that he collected the pellets of heroin from the appellant and paid her.  Thus, it was said that the evidence was insufficient to establish that the appellant knowingly brought heroin into Australia.  To support this contention, the appellant relied upon the fact that Vo agreed that he had previously secreted drugs on couriers whom he used to transfer heroin.  There had been two occasions where he had been involved with others in arranging for persons who were unwitting couriers to carry heroin.  One such occasion was when heroin was transferred from one place to another in Vietnam, and the second was an occasion when heroin was transferred from one place to another in Australia.  On neither occasion was the method of transfer of the heroin by the technique of carrying heroin in the form of pellets wrapped in a condom inserted in the anus of the courier.  His evidence — which was not, it appears, challenged — was that whenever he arranged for couriers to bring heroin from Vietnam to Australia, the technique that was always used was to bring the heroin in pellets per anus.  Thus the Crown contended by implication that he had used that technique with the appellant on this occasion. 

1. The second basis upon which Vo was attacked was that he had clearly given a number of inconsistent accounts as to whom he had paid the money for the appellant’s services.  In his evidence-in-chief he had said that he had paid the appellant in person whilst in cross-examination he gave different accounts, including one supported by the surveillance evidence that the appellant’s husband and son had attended at his premises and had been paid there.  There were other aspects of his testimony that supported the appellant’s contention that he was an unreliable witness. 

1. Thirdly, the appellant relied upon evidence that supported the contention that it was the appellant’s husband and Vo who had made arrangements for the appellant to bring heroin back to Australia and that such evidence supported the hypothesis that the appellant was an unwitting courier. 

1. In oral argument, the appellant also sought to demonstrate that the pieces of corroboration upon which the Crown relied were also problematic.  Three particular matters were referred to.  First, the Crown relied upon a phone intercept at 1.08 pm on the afternoon of 6 February when Vo called his associate in Vietnam.  Before the phone call actually connected, the intercept was said to have recorded a conversation between Vo and the appellant, apparently at the time that it was alleged Vo was at the appellant’s home having collected the heroin.  According to the Crown case, as suggested by the trial judge in his charge, he was there referring to the appellant’s daughters who were still in Vietnam and advising her to tell her daughters that they should not bring in dried foods, otherwise the border officers would go through their luggage and ask them many questions.  Vo said this was to help them bring in heroin.  Immediately after that discussion, Vo is heard talking to his associate in Vietnam and advises him ‘smoothly no problem at all’ and then makes reference to a medicated lip balm, which Vo explained during the trial was used to make it easier to insert the condom into the anus.  The appellant disputed that it was she that was talking with Vo before he commenced to speak with his associate in Vietnam.  It was submitted that the significance of that conversation depended upon the jury accepting Vo’s claim that it was the appellant with whom he was speaking.  It is not, however, without significance that having regard to the other telephone intercepts of the early afternoon of 6 February, the Crown was able to invite the jury to infer that such a conversation occurred at the time that Vo visited the appellant. 

1. Second, the appellant submitted that the evidence of the money transfers on 7 February did not advance the Crown’s case, as there was no evidence that it was the appellant who made either of those transfers.  It was submitted that someone, probably the appellant’s husband, had used the appellant’s name to make a second transfer so that there was no single sum exceeding $10,000, which would have contravened AUSTRAC regulation.

1. Third, it was submitted that the note found by investigators in Vo’s rubbish bin referring to a sum of $9,000, and recording the appellant and her husband’s names, did not advance the Crown case as Vo had given inconsistent explanations for the purpose of the payment.  One explanation was that the money was paid to the appellant’s husband for his medical treatment.  As such, it was said that it was not for payment of the appellant’s services.

1. The test by which a court of criminal appeal must determine whether a jury verdict is unsafe and unsatisfactory — or, as that ground is expressed in the appeal statute, ‘is unreasonable or cannot be supported having regard to the evidence’[2] —has been stated and restated many times since the High Court decided M v The Queen.[3]  For example, in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) described the test as follows:

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.  It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[4]

[2]Criminal Procedure Act 2009 s 276(1)(a).

[3](1994) 181 CLR 487.

[4](2007) 230 CLR 559, 596–7.

1. Provided the jury has been given appropriate and adequate directions of law by the trial judge to enable them to consider their verdict properly, that verdict is solely a matter for them.  The verdict will only be interfered with on appeal if the appellant can demonstrate that, allowing for the special advantages that the jury had, no reasonable jury could properly have reached it upon the evidence before them. - #

1. Accepting that there was reason to approach Vo’s evidence with caution, the trial judge gave a full and careful direction as to how the jury should approach his reliability.  No complaint is made as to that direction.  In my view nothing has been said on this appeal that should have led the jury to entertain a doubt as to the critical parts of his evidence that were supported by circumstantial evidence.

1. Leaving to one side those parts of Vo’s evidence that were in issue, there was a substantial body of circumstantial evidence that implicated the appellant.  The uncontested evidence of Vo that the appellant returned from Vietnam and did bring heroin into the country, and that Vo did obtain the heroin from her home the day she returned and that payment was made by Vo for that service, when coupled with the substantial body of circumstantial evidence, was sufficient to establish the appellant’s guilt even if the jury had considered that they could not act upon the disputed portions of Vo’s evidence.  It was open to the jury to conclude that the evidentiary circumstances bore no other reasonable explanation than that for which the Crown contended. The relationship of the circumstantial facts to the issue of whether the appellant knew she had imported heroin so increased the probability that those facts would not exist unless she did import the drug knowing it to be heroin, as to satisfy the criminal standard of proof.  

1. None of the matters raised on the appellant’s behalf suggests that the jury verdict was unreasonable or unsafe.

NETTLE JA:

1. I agree.

COGHLAN JA:

1. I agree.

NETTLE JA:

1. The appeal is dismissed.

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