Dang v The Queen; Tran v The Queen - [2015] NSWCCA 163

Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Dang v R; Tran v R
Medium Neutral Citation:	[2015] NSWCCA 163
Hearing Date(s):	27 March 2015
Decision Date:	25 June 2015
Before:	R A Hulme J at [1]; Davies J at [155]; Bellew J at [163]
Decision:	Leave to appeal against conviction granted. Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal against sentence dismissed.
Catchwords:	CRIMINAL LAW – appeal against conviction – attempt to possess marketable quantity of border controlled drug (heroin) – co-accused – circumstantial evidence case – appellants’ version of events implausible – verdicts of guilty not unreasonable or unsupported – leave to appeal granted – appeal against conviction dismissed CRIMINAL LAW – appeal against conviction – attempt to possess marketable quantity of border controlled drug (heroin) – co-accused – whether error in failing to order separate trial – whether admission of certain evidence regarding one accused prejudicial to case of co-accused – evidence admissible - no error CRIMINAL LAW – appeal against sentence – attempt to possess marketable quantity of border controlled drug (heroin) – co-offenders - no error in finding intention to acquire entire consignment – no error in assessment of relative culpability – no justifiable sense of grievance between sentence imposed on appellant and co-offender – sentence not manifestly excessive – leave to appeal granted - appeal against sentence dismissed
Legislation Cited:	Criminal Appeal Act 1912 (NSW) s 6(1) Criminal Code (Cth) ss 11.1(1), 307.6(1)
Cases Cited:	Dinsdale v R [2000] HCA 54; 202 CLR 321 Gilham v R [2012] NSWCCA 131 Green v R; Quinn v R [2011] HCA 49; 244 CLR 462 Sinkovich v R [2011] NSWCCA 90 Wong v R [2001] HCA 64; 207 CLR 584
Category:	Principal judgment
Parties:	Dao Nguyen Dang (Applicant) Binh Huy Tran (Applicant) Regina (Respondent)
Representation:	Counsel: Mr W Chan (Dang) Mr T Game SC with Mr Barrow (Tran) Mr O’Donnell (Crown) Solicitors: Van Houten Law Commonwealth Dirctor of Public Prosecutions
File Number(s):	2012/156946; 2012/164776
Decision under appeal:
Court or Tribunal:	District Court
Date of Decision:	14 October 2013
Before:	Arnott SC DCJ
File Number(s):	2012/156946; 2012/164776

JUDGMENT

R A HULME J: Dao Nguyen Dang and Binh Huy Tran were found guilty by a jury after a 14-day trial in 2013 of attempting to possess heroin, it being a border controlled drug in a marketable quantity that had been unlawfully imported.
The offence is contrary to the provisions of ss 307.6(1) and 11.1(1) of the Criminal Code (Cth) and is punishable by imprisonment for 25 years and/or a fine of 5000 penalty units.
They were sentenced on 14 October 2013 by his Honour Judge Arnott SC to imprisonment for 7 years 10 months with a non-parole period of 5 years 2 months (Dang) and 10 years with a non-parole period of 6 years 6 months (Tran). Both sentences were specified to have commenced on 24 June 2013.
Mr Dang's appeal against conviction is based upon two grounds:
Ground 1:…

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.

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Details

Case: [2015] NSWCCA 163
Decision Date: 25 June 2015

CaseChat Overview and Summary

In the recent decisions of Dang v The Queen and Tran v The Queen, the High Court examined the appeals of two co-accused against their convictions and sentences for an attempted possession of a marketable quantity of heroin. The appellants were convicted following a circumstantial evidence case where the prosecution presented a detailed account of their involvement in the drug trafficking operation. The legal issues before the Court centred on the sufficiency of the evidence to support the guilty verdicts, the appropriateness of a joint trial, and the admissibility of certain evidence.

The Court addressed the appellants’ contention that their convictions were not supported by the evidence, arguing that the jury's conclusion that their version of events was implausible was not unreasonable. The Court held that the jury was entitled to reject the appellants’ accounts, and that the verdicts of guilty were not so unsupported as to be unsafe and unsatisfactory. Regarding the claim that a separate trial should have been ordered, the Court found no error in the decision to proceed jointly, as the evidence against each appellant was closely interwoven with the other’s case.

Furthermore, the Court considered the appellants' argument that evidence concerning one accused was prejudicial to the co-accused. It was determined that the evidence was admissible and did not unfairly prejudice the appellants’ cases. The Court also assessed the sentences imposed on the appellants, concluding that there was no error in the findings regarding their relative culpability or the intention to acquire the entire consignment. The sentences were deemed not manifestly excessive, and the Court found no justifiable sense of grievance between the sentences of the appellants and their co-offenders. Consequently, the appeals against both conviction and sentence were dismissed.

Orders