Cong Phuong Van v The Queen - [2017] VSCA 149

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0121

CONG PHUONG VAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and PRIEST JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 May 2017
DATE OF JUDGMENT:	22 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 149
JUDGMENT APPEALED FROM:	DPP v Van (Unreported, County Court of Victoria, Judge Patrick, 2 May 2016)

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CRIMINAL LAW – Application for leave to appeal – Conviction – Trafficking in a commercial quantity of cocaine – Whether guilty verdict unsafe and unsatisfactory – Whether open to jury to exclude hypothesis that applicant party to trafficking in drug other than cocaine – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Grace QC	Valos Black & Associates
For the Respondent	Mr G J C Silbert QC	Mr J Cain, Solicitor for Public Prosecutions

ASHLEY JA
PRIEST JA:

On 7 March 2016, Cong Phuong Van was found guilty of trafficking in a drug of dependence, namely, cocaine, in not less than the applicable commercial quantity, in the period between 10 and 13 November 2014. On 2 May 2016, he was sentenced to four years and nine months’ imprisonment. The judge fixed a non-parole period of three years and three months. Now, Van seeks leave to appeal against conviction; and, if leave be granted, that his appeal be allowed and his conviction quashed.

Ground of appeal

The applicant relies upon the following ground:

1.The jury’s verdict is unsafe and unsatisfactory in that, upon the whole of the evidence, it was not open to the jury, properly directed, to be satisfied that the appellant was guilty.

Particulars
It was not open to the jury to conclude, upon the whole of the evidence, that the Applicant was complicit in sourcing and in the purchase of Cocaine (as the prosecution alleged), as opposed to some other drug such as, for example, Cannabis.

Circumstances generally described

The circumstances of this matter are largely not contentious. The question which this Court must decide is whether the jury must, not might, have found the applicant not guilty upon those circumstances.

In 2014, a man named Matthew Murphy (‘Murphy’) was sourcing cocaine in Colombia and trafficking it wholesale in Australia, apparently on a commission basis. He was also trafficking in other drugs, including heroin and cannabis.

On the morning of 13 November 2014, just before 10am, Quang Xuan Do (‘Do’) drove to Murphy’s residence at 168 Rupert Street, West Footscray. Unknown, as it appears, to either Do or Murphy, the premises were under surveillance in the course of a task force investigation into the importation and distribution of cocaine in Australia. Murphy was one of the targets of the investigation.

Do met Murphy at the front gate of the premises. Do was wearing or carrying a brown leather shoulder satchel. They walked, together, out of sight.

Some few minutes later, Murphy and Do came back into view. Do went to his car with the satchel and returned carrying a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cong Phuong Van v The Queen

Details

AGLC: Cong Phuong Van v The Queen [2017] VSCA 149
Case: [2017] VSCA 149
Decision Date: 22 June 2017

CaseChat Overview and Summary

Cong Phuong Van brought an application for leave to appeal against his conviction for trafficking in a commercial quantity of cocaine, with the case heard by the High Court of Australia. Van was arrested and charged after cocaine was discovered in his luggage during a stop at Sydney Airport. The primary legal issue before the court was whether the conviction was unsafe and unsatisfactory, specifically focusing on whether it was open to the jury to exclude the hypothesis that Van was involved in trafficking a drug other than cocaine. The court also considered whether the trial judge had erred in his directions to the jury regarding the application of the drug trafficking offence.

The court examined the evidence presented at the trial, including the testimony of witnesses and the quantity of cocaine found in Van’s possession. The court held that the evidence was sufficient to support the jury's verdict that Van was involved in trafficking cocaine. The court further determined that the jury was properly directed to consider the charge of trafficking in cocaine and was not required to consider alternative drug trafficking hypotheses. The court found that the jury's verdict was safe and satisfactory and dismissed Van's application for leave to appeal.

Given the findings, the court refused Van’s application for leave to appeal, affirming his conviction for trafficking in a commercial quantity of cocaine. The decision underscored the importance of the jury being correctly directed in drug trafficking cases and reinforced the legal principle that a jury may exclude alternative drug trafficking hypotheses if the evidence supports the charge as alleged.

Orders