Dinh v The State of Western Australia
[2020] WASCA 165
•2 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DINH -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 165
CORAM: MAZZA JA
MITCHELL JA
BEECH JA
HEARD: 7 SEPTEMBER 2020
DELIVERED : 2 OCTOBER 2020
FILE NO/S: CACR 30 of 2019
BETWEEN: ANNE TRAN DINH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEVENSON DCJ
File Number : IND 404 of 2018
Catchwords:
Criminal law - Appeal against conviction - Possession of methylamphetamine with intent to sell or supply to another person - Whether miscarriage of justice suffered having regard to additional evidence sought to be adduced
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Application dismissed
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | LM Fox |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Dinh v The State of Western Australia [2019] WASCA 167
Ryan v The State of Western Australia [No 2] [2011] WASCA 144
JUDGMENT OF THE COURT:
This is an appeal against conviction.
On 14 February 2019, the appellant and her son, Andrew Dinh Tran, were convicted after trial by jury in the District Court of one count of possession of 24.2 g of methylamphetamine with intent to sell or supply to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).[1] The appellant, who is self‑represented, now appeals to this court against her conviction on one ground, which, in essence, alleges that, having regard to additional evidence she seeks to adduce in the appeal, the appellant has suffered a miscarriage of justice.
[1] The appellant was sentenced to 2 years' immediate imprisonment with eligibility for parole to commence on 13 February 2019. An application for leave to appeal against this sentence was refused on 29 October 2019: Dinh v The State of Western Australia [2019] WASCA 167.
On 18 December 2019, the appellant applied to adduce an affidavit sworn by Mr Tran on 18 December 2019 as additional evidence in the appeal. This affidavit attests to the truth of a document written by Mr Tran entitled 'Confessional Statement', reproduced below. In essence, Mr Tran states that the appellant had no knowledge of the methylamphetamine the subject of the charge, and that he was solely responsible for it.
Both the application for leave to appeal and the application filed 18 December 2019 were referred to the hearing of the appeal.[2]
[2] Order 23 December 2019.
There is no merit in the appeal. The additional evidence upon which the appeal is based is neither cogent nor plausible. The appellant has not suffered a miscarriage of justice. The application to adduce additional evidence should be dismissed, leave to appeal refused and the appeal dismissed.
Background
Evidence to the following effect was adduced at the appellant's and Mr Tran's trial. While the recorded interview of Mr Tran by police was not admissible against the appellant at trial, it is relevant to this court's assessment of his evidence in the appeal.
The appellant and her son, Mr Tran, were long‑term residents of the town of Carnarvon. There, the appellant's family conducted a business. Around the time of the offending, the appellant was engaged in litigation concerning her property, and was experiencing financial difficulty.[3]
[3] ts 261 - 262.
On 18 November 2014, the appellant and Mr Tran drove from Perth with the intention of arriving in Carnarvon later that day. Mr Tran drove the vehicle and the appellant sat in the front passenger seat. On the way, the appellant and Mr Tran stopped in Geraldton to refuel.[4]
[4] Appeal ts 58.
At about 6.10 pm on 18 November 2014, the appellant and Mr Tran's vehicle approached a truck stop on the North West Coastal Highway, opposite the Overlander Roadhouse, about 120 km south of Carnarvon. As it did so, Senior Constable Hobson, who was at the time on duty with Detective Sergeant South, waved the vehicle into the truck stop as part of a random police stop.[5] Mr Tran drove the vehicle into the truck stop at a higher speed than would ordinarily be expected. He did not stop the vehicle where Senior Constable Hobson had indicated it should stop. A UHF radio which could be used for two‑way communication was observed in Mr Tran's lap. As the vehicle pulled in, Detective Sergeant South observed the appellant attempting to place her handbag under her passenger seat.[6]
[5] ts 235.
[6] ts 236.
The police officers directed the appellant and Mr Tran to sit beside the vehicle and conducted a search of it. Senior Constable Hobson located the appellant's open handbag under the passenger seat. It contained a number of purses, a red notebook and a black sunglasses pouch with a drawcord which was pulled up tightly. The pouch, which was on top of the other items in the bag, contained a clipseal bag, within which was another clipseal bag containing 24.2 g of methylamphetamine with a purity of 67%, and a blue plastic spoon which subsequently returned a positive match to Mr Tran's DNA.[7] The value of that quantity of methylamphetamine in Carnarvon at the time of the offence was approximately $10,000.[8]
[7] ts 236 - 237.
[8] ts 264 - 265.
The police also found two methylamphetamine smoking pipes in the door of the front passenger seat, next to the appellant and in her plain view. One of these pipes returned a positive match to Mr Tran's DNA.[9]
[9] ts 237.
Both the appellant and Mr Tran took part in separate video‑recorded interviews with the police in Carnarvon. Mr Tran's interview commenced late on 18 November 2014. In his interview, Mr Tran told police that:
(1)He had no knowledge of the drugs which were found in the car.[10]
(2)He was not a user of methylamphetamine.
(3)At the fuel stop in Geraldton, he removed and then searched through the purses in the appellant's handbag looking for money to pay for petrol while the appellant went to the toilet.[11]
(4)The sunglasses pouch did not belong to him, and the first time he saw it was on the floor of the vehicle next to one of the purses at the fuel stop in Geraldton. He could not recall removing the pouch from the appellant's handbag, but surmised that he must have placed it in the handbag when he repacked it.[12]
[10] BGAB 45.
[11] BGAB 36.
[12] BGAB 37 - 38.
The appellant's interview was conducted with the aid of a Vietnamese interpreter in the early hours of 19 November 2014. The appellant told police that:
(1)She had no knowledge of where the sunglasses pouch came from or to whom it belonged. She told the police that the substance in the sunglasses pouch appeared to be a Vietnamese food called 'sugar wrap'.[13]
(2)She had no knowledge of the drugs found in the sunglasses pouch in her handbag.[14]
[13] BGAB 14.
[14] BGAB 15 - 16.
The State's case at trial
The State's case at trial was that the appellant and Mr Tran were in joint possession of the methylamphetamine found in the appellant's handbag. The case against the appellant and Mr Tran was circumstantial. A key factual issue for the jury to decide was whether the appellant had knowledge of the methylamphetamine found by the police. The State alleged that the jury could infer that the appellant jointly possessed the methylamphetamine with Mr Tran having regard to the following:
(1)The appellant and Mr Tran were travelling together.
(2)The methylamphetamine was found in the appellant's handbag.
(3)Detective Sergeant South observed the appellant attempting to hide her handbag under the front passenger seat at the truck stop.[15]
(4)The methylamphetamine had significant value.[16]
(5)The appellant was experiencing financial difficulty at the time.
[15] ts 39.
[16] ts 41 - 42.
The appellant's case at trial
In his opening address to the jury, senior counsel for the appellant asserted that the appellant was not in possession of the methylamphetamine because she had no knowledge of the sunglasses pouch in her handbag, nor of the drugs it contained.[17]
[17] ts 46.
The appellant elected not to give evidence and did not adduce any evidence in her defence at trial.
In his closing address to the jury, senior counsel suggested that the case against Mr Tran was far more compelling that the case against the appellant, and that the jury should find her not guilty because they could not be satisfied beyond reasonable doubt that the appellant had knowledge of the methylamphetamine.[18]
[18] Closing ts 18 - 21.
Mr Tran's case at trial
In his opening address to the jury, counsel for Mr Tran did not deny that the methylamphetamine was in the appellant's handbag. Counsel asserted that Mr Tran had no knowledge of the drug, and that Mr Tran did not know how it got into the appellant's handbag.[19]
[19] ts 46 - 47.
Mr Tran elected not to give evidence and did not adduce any evidence in his defence.
In his closing address, Mr Tran's counsel submitted that the sunglasses pouch may have been left in the vehicle by others, and that Mr Tran may have scooped it up when he was repacking the appellant's handbag at the truck stop.[20] Counsel asserted that Mr Tran's DNA found on the blue plastic spoon and the smoking pipe could have been explained by 'secondary transference'.[21]
[20] Closing ts 9 - 12.
[21] Closing ts 3 - 4.
The real issue for determination at trial
The real issue for the jury to decide at trial was whether it was satisfied beyond reasonable doubt that the appellant was in joint possession with Mr Tran of the methylamphetamine in the sunglasses pouch. The trial judge correctly directed the jury that it could not convict the appellant unless, having regard to all of the evidence, it was satisfied beyond reasonable doubt that the appellant had knowledge of the methylamphetamine in the sunglasses pouch.[22] It is clear from the jury's verdict of guilty that it was so satisfied.
[22] ts 202 - 203.
The ground of appeal and the application to adduce additional evidence
The appellant does not submit that the verdict of guilty was unreasonable or cannot be supported on the evidence that was adduced at trial. As stated earlier, the sole ground of appeal is that the appellant has suffered a miscarriage of justice having regard to the additional evidence the subject of the application filed on 18 December 2019.
In Ryan v The State of Western Australia [No 2],[23] which has features similar to the present case, Hall J, with whom Buss and Murphy JJA agreed, set out the relevant legal principles where an appeal is brought on the basis that a miscarriage of justice has occurred, having regard to fresh evidence.[24] His Honour said:[25]
Whether an appeal brought on the basis of fresh evidence can succeed depends upon it being established that there was a miscarriage of justice: s 30(3)(c) Criminal Appeals Act 2004 (WA). A miscarriage of justice would be established if the appeal court considered that there was a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the fresh evidence had been before it at the trial: Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ). The appellant carries the onus of establishing that such a miscarriage has occurred.
Fresh evidence is evidence which either did not exist at the time of the trial or which could not then, with reasonable diligence, have been discovered. The test applicable in respect of new evidence as opposed to fresh evidence is different: Stavrianakos v The State of Western Australia [2011] WASCA 130. It is unnecessary for present purposes to expand upon those differences. Even assuming that the fresh evidence test is applicable in this case, this appeal cannot succeed for the reasons that follow.
It is necessary for an appellate court to make an assessment of the evidence that is said to be fresh. In respect of recanting witnesses, this has been said to be influenced by two matters. First, the reason or reasons given by the witness for having recanted his or her evidence, and second, the significance of the evidence of the witness at trial and whether, and if so to what extent, the appellant's conviction was supported by other apparently reliable evidence: Amiss v The State of Western Australia [2006] WASCA 171; (2006) 165 A Crim R 387 [68] (Buss JA).
In the present case Marshall is not a recanting witness as he did not give evidence at the trial. However, his position is analogous to that of a recanting witness in that he presented a positive defence case at trial to the effect that he had no knowledge of the drugs contained in the package and was therefore never in possession of them but now claims otherwise. A conviction may be set aside on the basis of a recantation if the witness' new version of events is sufficiently relevant, cogent and plausible to raise a doubt as to guilt in all the circumstances, including the original evidence and explanations given for the original evidence and the recantation: Bryer (1994) 75 A Crim R 456, 458 (Fitzgerald P) referred to by Buss JA in Amiss [69].
[23] Ryan v The State of Western Australia[No 2] [2011] WASCA 144.
[24] It was not an issue in this appeal that Mr Tran's evidence was fresh evidence.
[25] Ryan [23] ‑ [26].
Thus, in the present case, the appellant's conviction may be set aside by reason of additional evidence, but only if the version of events now given by Mr Tran is sufficiently cogent and plausible to raise a doubt as to the appellant's guilt, having regard to what occurred at the trial.
Mr Tran's evidence in this court
The confessional statement which was attached to Mr Tran's affidavit sworn 18 December 2019 is brief and is set out in full below.
I am making this confession of my own free will and without any form of coercion. My name is Andrew Dinh Tran, born on the 15th of August 1980. I have been convicted and sentenced to three years imprisonment for possession of methamphetamine with intent to sell.
The most honourable thing for me to do now is to confess the truth and to accept the consequences of my actions. I hope that this confession will set my mother, Anne Tran Dinh free (who was trialled and convicted on the same dates as I have), as she is truly innocent and does not deserve to be punish for a crime I have committed.
On Tuesday the 18th of November 2014, approximately 9am I was travelling in a car with my mother Anne Tran Dinh, and a friend who was travelling in his own vehicle to Carnarvon.
We stopped in Geraldton to refuel, and while I was putting petrol in the car, my mother had left her handbag sitting in the passenger seat and went to the rest room, because I have previously mentioned to her that I had no money on me to pay for the fuel. I took this opportunity to place a black pouch containing methamphetamine into her handbag, and was quite confident that she may not notice any difference, because her handbag was filled with other things. I was stupid to think that if it was in my mother's handbag, I would be safe, if we happened to be stopped by the police.
We were signalled by the police as we approached the Overlander Roadhouse. One of the officers asked to sight my driver licence, to which I handed over. I was subsequently questioned if I was related to Lisa Tran. I replied 'yes, but not by choice'. Then I was instructed a search will be conducted to my car.
The Police found the black pouch in my mother's handbag. My mother then questioned if it was mine, because it was foreign and unknown to her. I denied that it was mine.
I was a user of methamphetamine and up until my sentencing day, I supported my habit by making profits from selling drugs, and had kept this as a secret from my parents. Now that I am incarcerated, and no longer under the influence of drugs, I have had time to reflect, I am remorseful of my actions and do feel extremely guilty having involved my mother in my crime. Perhaps, the drugs may have contributed to my lack of conscience in the past, and instead of freeing my mother for her innocence, I tried to saved my own self and had kept silence, letting her take the chances in court.
This is my chance to accept the consequences for my actions and do the right thing by society, my mother, my father, and my whole family. I solemnly declare and admit I am solely responsible for the drugs found in my mother's handbag. They were mine, I am highly ashamed, I have used my mother, and I hope justice will be with her from now on.
Mr Tran gave oral evidence before this court and was cross‑examined by counsel for the respondent. In his evidence‑in‑chief, Mr Tran confirmed that the contents of the affidavit sworn 18 December 2019, including the confessional statement, were true and correct.[26]
[26] Appeal ts 55.
Under cross‑examination, Mr Tran stated the following:
(1)He obtained the drugs that the police found in his car in Perth.[27]
[27] Appeal ts 57.
(2)A car being driven by a friend named David Ward travelled behind and accompanied Mr Tran's vehicle on its journey to Carnarvon. Both vehicles stopped at the fuel stop in Geraldton and later at the Billabong Roadhouse.[28] Mr Tran agreed that in his video record of interview with the police he said that he had not travelled with anybody else on the day in question. He accepted that this statement to the police was untruthful.[29]
[28] Appeal ts 58.
[29] Appeal ts 60.
(3)While in Geraldton, he stopped at Bunnings to buy some 'parts for the house'.[30]
[30] Appeal ts 62.
(4)He did not think about hiding the methylamphetamine he had obtained until he arrived at the fuel stop in Geraldton. Mr Tran explained that as he had picked the drugs up just before he and his mother left Perth, he 'didn't have time to hide [them]'.[31]
(5)When he repacked his mother's handbag after paying for the fuel in Geraldton, he 'buried' the sunglasses pouch which contained the drugs deep into the handbag so that they could not easily be seen.[32]
(6)When he was reminded of the evidence adduced at trial that the sunglasses pouch was found on top of the red notebook near the top of the appellant's handbag, he said that he had 'no idea' how it came to be found in this location despite his evidence that he had 'buried' it within the handbag.[33]
(7)The smoking pipes that were found in the door pocket near the front passenger seat belonged to him.[34] Mr Tran agreed that he told the police in the interview that they were not his and that his case at trial and on sentence was conducted on the false basis that the pipes did not belong to him and that he was not a drug user at the time of his arrest.[35]
(8)On the second day of his trial he instructed his lawyer that he wanted to plead guilty, but was told by his lawyer that he would not represent him if he 'wanted a guilty plea'.[36]
(9)He lied to the police in his interview when he said that he knew nothing about the drugs that had been found in the appellant's handbag.[37]
(10)He suggested to the police in his interview that perhaps two of his school friends might have been responsible for the drugs and that he made up the names of these friends.[38]
(11)When asked about whether in 2017 he had pleaded guilty in the Magistrates Court to a charge of stealing various items from Bunnings, he answered, 'Possibly', but ultimately accepted that he had been charged with the offence and had pleaded guilty to it.[39]
(12)In connection with the stealing offence, he gave a false name to the police who arrested him, and pleaded guilty to a further offence of giving false personal details to the police.[40]
(13)The appellant was not involved in the commission of the offence the subject of the indictment.[41]
[31] Appeal ts 63.
[32] Appeal ts 64.
[33] Appeal ts 67.
[34] Appeal ts 68.
[35] Appeal ts 68.
[36] Appeal ts 68.
[37] Appeal ts 69.
[38] Appeal ts 69.
[39] Appeal ts 69 - 70.
[40] Appeal ts 71.
[41] Appeal ts 71.
Disposition
For the reasons set out below, we find that Mr Tran's evidence regarding the appellant's role in the offence is neither cogent nor plausible and does not raise a doubt as to the guilt of the appellant.
We begin by observing that, in key respects, Mr Tran's confessional statement and his oral evidence are inconsistent with what he told the police in his interview on 18 November 2014.
In his police interview, Mr Tran denied that he was a drug user and that he had knowledge of the methylamphetamine in the sunglasses pouch. Mr Tran told the police that he did not know how the drugs came to be in the appellant's handbag. He suggested that the drugs may have belonged to two of his school friends, whom he named.
All of the statements summarised in the previous paragraph were contradicted by Mr Tran in his confessional statement and sworn testimony. Contrary to what he had said in the police interview, Mr Tran was, at the time of the commission of the alleged offence, an illicit drug user; he had obtained the methylamphetamine that was found in the sunglasses pouch; he had put the sunglasses pouch containing the methylamphetamine into his mother's handbag at the fuel stop in Geraldton; and he lied to the police when he said that the owners of the drugs might be two of his school friends. Indeed, on this last point, he agreed in his testimony before this court that he had made up the names of his school friends.
There are a number of unsatisfactory aspects of Mr Tran's account of events which he provided during his testimony in this court. Mr Tran accepted that he lied to the police when he said in his interview that he had travelled to Carnarvon alone. Under cross‑examination, he revealed that a vehicle being driven by his friend, David Ward, followed him on the journey from Perth.
We do not accept Mr Tran's evidence that he only turned his mind to a hiding spot for the methylamphetamine he had obtained when he reached the fuel stop in Geraldton, having already driven approximately 400 km from Perth. It is implausible that he would not have considered at the beginning of his journey where he would hide the methylamphetamine in the vehicle, particularly bearing in mind that, as the respondent contended, Mr Tran was more likely to encounter police in the more populous areas between Perth and Geraldton.[42] He gave no evidence as to where in the car the drugs were located during the Perth to Geraldton leg of the trip, if not in the appellant's handbag. Moreover, his explanation for not secreting the drugs in the car at Perth, being that he did not have time to do so, is implausible given that there is nothing to indicate Mr Tran was rushed for time when he left Perth.
[42] Closing ts 76.
Contrary to Mr Tran's evidence in this court, the sunglasses pouch which contained the drugs was not found 'buried' or hidden in the appellant's handbag, but was instead found on top of the red notebook. It would have been obvious to anyone looking into the bag.
A further significant matter revealed in cross‑examination, adverse to Mr Tran's credibility and the appellant's case, was that the methylamphetamine smoking pipes used by the appellant were stored in the front passenger seat pocket in plain sight of the appellant. This is inconsistent with the appellant not knowing, and Mr Tran wanting to keep from her, that he was a drug user.
Yet another matter adversely impacting upon Mr Tran's credibility was his prior convictions for stealing from Bunnings and giving false personal details to police. Each of these convictions shows a propensity for dishonesty.
Further, it cannot be overlooked that the effect of Mr Tran's evidence in this court is that not only did he falsely deny to the police any involvement in the alleged offence, but that he put forward a positive defence case based on this false account at trial.
Of course, the credibility of Mr Tran's evidence exculpating the appellant must be viewed against all of the other evidence which was adduced at trial. In our view, the State's circumstantial case against the appellant at trial was strong. The sunglasses pouch which contained the methylamphetamine was found in a prominent position in the appellant's open handbag. That handbag was discovered by police virtually at her feet. One of the police officers saw her attempt to hide the handbag when the vehicle was stopped. This reaction is consistent with the appellant having knowledge of the contents of the bag and wishing to hide it from police. The evidence adduced at trial indicated that the appellant was in financial difficulty and thus had a motive for the commission of the alleged offence.
It may be accepted that Mr Tran was the person who sourced the methylamphetamine in Perth and may have been the person who was to sell or supply the drug in Carnarvon. However, having regard to the evidence presented at trial, Mr Tran's evidence is not sufficiently cogent or plausible as to be reasonably capable of giving rise to a reasonable doubt as to whether the appellant had knowledge of the methylamphetamine in her handbag and exercised control over it. Even if the appellant was only in possession of the drugs for a short amount of time to hide them from the police with an intention to return them to her son, she would have been guilty of the offence of which she was convicted.
Orders
For the above reasons, Mr Tran's evidence in this court was neither cogent nor plausible. There is no significant possibility that the jury, acting reasonably, would have acquitted the appellant if the evidence given by Mr Tran's evidence in this appeal had been before it at trial. The application to adduce additional evidence should be refused, the allegation of a miscarriage of justice has not been made out and the appeal fails. We would make the following orders:
(1)The application to adduce additional evidence in the appeal is refused.
(2)Leave to appeal is refused.
(3)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza2 OCTOBER 2020
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