Huynh v The State of Western Australia
[2013] WASCA 35
•11 FEBRUARY 2013
HUYNH -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 35
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 35 | |
| THE COURT OF APPEAL (WA) | 11/02/2013 | ||
| Case No: | CACR:41/2012 | 14 NOVEMBER 2012 | |
| Coram: | MARTIN CJ PULLIN JA BUSS JA | 14/11/12 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to rely upon additional evidence dismissed Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | VANHUNG HUYNH THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Multiple drug dealing offences Whether the appellant understood that he was pleading guilty to possession, with intent to sell or supply, prohibited drugs as alleged in counts 1 and 2 Appellant admitted possession On the facts admitted or asserted by the appellant on appeal he was guilty of the offences alleged in counts 1 and 2 No reasonable prospect of establishing a miscarriage of justice |
Legislation: | Misuse of Drugs Act 1981 (WA), s 3(1), s 6(1) Misuse of Drugs Amendment Act 1998 (WA) |
Case References: | Chowdhury v Kenny [No 2] [2012] WASCA 35 Davies v The State of Western Australia [2005] WASCA 47; (2005) 30 WAR 31 Manisco v The Queen (1995) 14 WAR 303 Mikulic v The State of Western Australia [2011] WASCA 14 Pinkstone v The Queen [2004] HCA 23; (2004) 219 CLR 444 Ricciardo v The State of Western Australia [2010] WASCA 116 Ritchie v The Queen [2005] WASCA 84 Vella v The State of Western Australia [2006] WASCA 129 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HUYNH -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 35 CORAM : MARTIN CJ
- PULLIN JA
BUSS JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STAUDE DCJ
File No : IND 891 of 2010
Catchwords:
Criminal law - Appeal against conviction - Multiple drug dealing offences - Whether the appellant understood that he was pleading guilty to possession, with
(Page 2)
intent to sell or supply, prohibited drugs as alleged in counts 1 and 2 - Appellant admitted possession - On the facts admitted or asserted by the appellant on appeal he was guilty of the offences alleged in counts 1 and 2 - No reasonable prospect of establishing a miscarriage of justice
Legislation:
Misuse of Drugs Act 1981 (WA), s 3(1), s 6(1)
Misuse of Drugs Amendment Act 1998 (WA)
Result:
Application for leave to rely upon additional evidence dismissed
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr H Sklarz
Respondent : Mr B Fiannaca SC & Mr L M Fox
Solicitors:
Appellant : Henry Sklarz
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Chowdhury v Kenny [No 2] [2012] WASCA 35
Davies v The State of Western Australia [2005] WASCA 47; (2005) 30 WAR 31
Manisco v The Queen (1995) 14 WAR 303
Mikulic v The State of Western Australia [2011] WASCA 14
Pinkstone v The Queen [2004] HCA 23; (2004) 219 CLR 444
Ricciardo v The State of Western Australia [2010] WASCA 116
Ritchie v The Queen [2005] WASCA 84
(Page 3)
Vella v The State of Western Australia [2006] WASCA 129
(Page 4)
1 MARTIN CJ: The application for leave to adduce additional evidence, for leave to appeal, and the appeal were all dismissed for the reasons given by Buss JA, with which I agree.
2 PULLIN JA: I agree with Buss JA.
3 BUSS JA: The appellant applied to this court for leave to appeal against conviction.
4 He also applied for leave to rely upon additional evidence in the appeal, namely an affidavit sworn by him on 29 February 2012.
5 When the hearing of the applications concluded on 14 November 2012, the court made, relevantly, orders to the following effect:
(a) application for leave to rely upon additional evidence dismissed;
(b) leave to appeal refused; and
(c) appeal dismissed.
6 The court said that reasons for decision would be published later. These are my reasons.
The offences alleged against the appellant
7 The appellant was charged on indictment with 12 counts.
8 On 5 May 2011, he was convicted, on his pleas of guilty in the District Court before Martino CJDC, on counts 1 - 10. The State accepted those pleas in full satisfaction of all counts in the indictment. He also pleaded guilty to a breach of a suspended imprisonment order. His Honour adjourned the sentencing process.
9 Counts 1, 2, 7 and 8 alleged that the appellant had in his possession a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act). Counts 3, 4, 5 and 6 alleged that the appellant sold a prohibited drug to another, contrary to s 6(1)(c) of the Act. Counts 9 and 10 alleged that the appellant was in possession of a firearm, being a handgun, while not being the holder of a licence or permit under the Firearms Act 1973 (WA) entitling him to do so, contrary to s 19(1)(c) read with s 19(1ac)(b) of that Act.
(Page 5)
10 On 22 July 2011, the appellant appeared before Staude DCJ for sentencing. The hearing was adjourned. On 12 August 2011, his Honour imposed sentence. The outcome was as follows:
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The facts and circumstances of the offending
11 On 9 September 2009, police executed a search warrant at the appellant's home in Beechboro. In his bedroom, the police found two clipseal bags, one containing 3.46 g of methylamphetamine (23% pure) and the other 28.9 g of methylamphetamine (26% pure). In the study, the police located an additional 8.23 g of methylamphetamine (2% pure). The total weight of the drug was 40.59 g. These drugs were the subject of count 1.
12 During the search on 9 September 2009, the police also found a third clipseal bag which contained 4.42 g of heroin (55% pure). This was the subject of count 2.
13 Further, during the search on 9 September 2009 the police found $9,450 cash.
14 After the search on 9 September 2009, the appellant was charged with counts 1 and 2 and released on bail. He committed the other offences while on bail.
15 On 18 February 2010, the appellant sold 55.7 g of heroin (57% pure) to an undercover police officer for $30,000. This comprised count 3.
16 On 2 March 2010, at residential premises he was renting in Morley, the appellant sold 27.9 g of heroin (52% pure) to the undercover police officer for $18,500. This comprised count 4. The Morley premises were equipped with surveillance cameras and monitors.
17 On 23 March 2010, at the Morley premises, the appellant sold 56.8 g of heroin (54% pure) and 27.5 g of methylamphetamine (63% pure) to the undercover police officer. The heroin was sold for $33,000 cash and the methylamphetamine for $15,000 on credit. These comprised counts 5 and 6.
18 After the undercover police officer left the Morley premises on 23 March 2010, other police executed a search warrant at the premises. The appellant fled. He jumped a boundary fence into a neighbouring set of units in an attempt to escape. As he did so, he dropped a pencil case and a handgun. Inside the pencil case were several clipseal bags that contained a total of 100.57 g of heroin (with purities ranging between 45% and 51%) and 18.35 g of methylamphetamine (with purities ranging between 44% and 55%). The handgun was a Beretta Tomcat .32 calibre weapon. It was loaded with seven rounds of ammunition. The heroin and
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- methylamphetamine constituted counts 7 and 8 and the handgun was the subject of count 9.
19 During a later search of the Morley premises, the police found a BBM model .313 calibre handgun. It was loaded with four rounds of ammunition. This comprised count 10.
The proposed ground of appeal
20 The sole proposed ground of appeal alleges that there was a miscarriage of justice at the hearing before Martino CJDC 'where in the absence of an interpreter and contrary to his instructions the appellant without consciousness of guilt and without a true admission as to the element of possession with intent to sell or supply, mistakenly entered pleas of guilty to counts 1 and 2'.
21 On 17 June 2012, Mazza JA referred the application for leave to appeal to the hearing of the appeal.
The affidavit sworn by the appellant on 29 February 2012
22 In his affidavit sworn 29 February 2012, the appellant deposes, relevantly:
1. I was born in Vietnam on the 8th of May 1964 and when I came to Australia on the 9th of May 1990 I could not speak any English.
2. Since arriving in Australia I have learnt to speak some English but most times and for important things I require a Vietnamese interpreter.
…
4. At first, Mr Henry Sklarz was my lawyer and I first instructed him in relation to these charges in September 2009.
…
6. I told Mr Sklarz that the drugs were in fact Mr Do's and that Mr Do had admitted that they were his and that he (Mr Do) was going to sell them.
7. I verily believe that in February 2010, Mr Do gave a letter to Mr Sklarz which indicated that the drugs were his and that I had only been holding them for him. Annexed hereto and marked with the letters 'VH2' is a copy of the letter from Mr Do dated 10th February 2010 …
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- 8. I recall that Mr Sklarz visited me in Hakea on the 13th of October 2010 and at that time I instructed him that I would only be prepared to plead guilty to Counts 1 and 2 on the basis that the charges were reduced to possession only.
…
14. In early January 2011 my legal fees were being paid by my extended family and under pressure from them I told Mr Sklarz that I wanted to change lawyers so that Ms Kate King would act for me.
…
16. When I discussed my charges with Ms King in February 2011, I instructed her that I was prepared to enter into a plea arrangement but that I would only plead guilty to Counts 1 and 2 if they were reduced to possession only. I told her that this was because the drugs had been Mr Do's and that he was selling them, not me.
17. Ms King told me that she would brief Mr Lloyd Rayney to appear for me in Court and to provide an advice as to my pleas.
18. On the 8th of March 2011, Ms King sent me a very long document in English. I understand that it was from Mr Rayney. Neither the letter nor the attached document was translated …
19. To the best of my recollection I had a number of conferences with Ms King and Mr Lloyd Rayney which were done by video or by telephone. For these conferences an interpreter was always present.
20. On the 4th of April 2011 I sent Ms King by facsimile a short letter in English, written with the assistance of a friend, stating my instruction that I was only prepared to plead guilty to Counts 1 and 2 on the basis that I was guilty of being in possession only. This was my final instruction to my lawyers …
…
24. On or about the 3rd of May 2011, Ms King arranged a conference by video link at which time an interpreter was present as were Ms King, Mr Rayney and my daughter (Twee). I recall that I again talked about the plea arrangement and said that I would plead guilty to Counts 1 and 2 if they were reduced to possession only.
25. I was never asked to change my intended plea of not guilty for Counts 1 and 2 by Ms King, Mr Rayney or any other lawyer.
26. I recall that on the 5th of May 2011 I appeared before a Judge at the District Court. This was the day that I was to plead guilty
- according to what I believed was a plea arrangement with the DPP whereby Counts 11 and 12 of the Indictment were to be dropped and I would plead guilty to the remaining 10 counts with Counts 1 and 2 reduced to possession only. Mr Rayney appeared for me in Court.
- 27. I believed that there would be an interpreter present but there was not one when I was called before the Judge.
28. The matter was first stood down so that Mr Rayney could arrange for an interpreter.
29. Whilst I was still in the Court room, Mr Rayney came over to me and talked to me whilst the Judge dealt with other matters. Mr Rayney spoke to me in English and I understood only that he wanted me to say 'guilty' to each of the counts as they were read out.
30. After that short conversation, my matter was recalled and Mr Rayney spoke to the Judge and then came and stood next to me. He was holding the Indictment and prompted me to say 'guilty' as each count was read out. This happened about 10 minutes after the matter was stood down.
31. I did not fully understand what was being put to me. I just said 'guilty' to everything as prompted by Mr Rayney after each time he whispered to me the word 'guilty'. (emphasis added)
23 In the letter dated 10 February 2010 from Mr Do, which the appellant refers to in par 7 of his affidavit and which is annexure 'VH2' to that affidavit, Mr Do states, relevantly:
I'm sharing the house [in Beechboro] with [the appellant] but I have my own bedroom and a lot of my friends go in and out of it very often and I also go into [the appellant's] bedroom very often. Because of that I decided to leave my stuffs with him and asked him to keep an eye on them for me. All stuffs found in the house were mine.
24 The appellant's affidavit includes a certificate from Dinh Pham, who is fluent in the English and Vietnamese languages and a certified translator and interpreter. Mr Pham certified that he had read aloud to the appellant the contents of the affidavit and had translated it to him in the Vietnamese language. Mr Pham added that the appellant appeared to have understood and adopted the contents.
(Page 10)
The affidavit sworn by Kate Jennifer King
25 The State relied upon an affidavit sworn by Kate Jennifer King on 2 August 2012. Ms King is a legal practitioner. At all material times after 31 January 2011, she acted for the appellant in the District Court proceedings. Ms King briefed Lloyd Rayney, a barrister, to act as the appellant's counsel.
26 In her affidavit, Ms King deposes, relevantly:
6. … I spoke to [the appellant] on 11 March 2011 at which time he instructed that he wished to change his plea to guilty on all counts on the indictment. He also advised me he wanted Mr Rayney to attempt to liaise with the State to achieve the best possible outcome for him at sentencing.
7. My office then received a facsimile dated 4 April 2011 in which [the appellant] advised he wished to plead guilty to all counts except 1 and 2. [The appellant] provided these instructions in written English. In my dealings with him I found that [the appellant] could both understand and speak English …
8. On 13 April 2011 I had a telephone conference with Mr Rayney in which he advised me that the ongoing negotiations he had been conducting with the State had resulted in an agreement that in the event [the appellant] pleaded guilty to counts 1 to 10, the State would discontinue two firearms counts and the State would proceed as per the initial statement of material facts on counts 1 and 2, by not alleging [the appellant] was engaged in a commercial enterprise and in a limited way. I attach as Annexure 'C' a file note of that discussion with Mr Rayney.
9. Later that day I met with [the appellant], with an interpreter present, and discussed his recent facsimile and specifically his plea in relation to counts 1 and 2. He was told that in Mr Rayney's opinion the State would be unlikely to accept a plea of guilty on the basis of simple possession and that instead Mr Rayney had negotiated a deal, consistent with [the appellant's] earlier instructions, in which they would proceed with counts 1 and 2 as per the statement of material facts, that is, that the drugs were being looked after for a person named Doh.
10. After being informed of this position [the appellant] provided his instructions as to each of counts 1 - 10 on the indictment. These instructions were obtained with the assistance of the interpreter. During this meeting, [the appellant] clearly instructed he wished to plead guilty to counts 1 and 2 and specifically of the charge possession with intent to sell or supply. I attach as annexure 'D' a
- copy of the file note of that attendance. I attach as annexure 'E' confirmation of the interpreter's attendance at that meeting.
- 11. On 14 April 2011 I wrote to Mr Rayney confirming the client's instructions were to enter a plea of guilty to all remaining ten counts on the indictment …
12. I confirmed [the appellant's] new instructions to him in writing on 18 April 2011 …
13. On 3 May 2011 I met with [the appellant] and Mr Rayney and an interpreter. During the course of that meeting [the appellant] confirmed in the presence of myself, Mr Rayney and the interpreter that he wished to enter a plea of guilty to all 10 counts as per the indictment. His plea as to counts 1 and 2 were specifically discussed in the course of that meeting and he confirmed he would plead guilty to possession with intent to sell or supply. I attach as annexure 'H' a file note of that attendance. I attach as annexure 'I' confirmation of the interpreter's attendance.
…
18. At no time after the pleas of guilty were entered, after the plea of mitigation was presented or after the sentence was handed down, did [the appellant] indicate that he had not wished to plead guilty to the counts of possession with intent to sell or supply in counts 1 and 2. At all times [the appellant's] instructions were clear that he wished to plead guilty to counts 1 and 2 in their original form on the basis of the agreement Mr Rayney had made with the State; that being that he would be sentenced on a neutral basis for these counts with the State not positively asserting he was running a commercial business, as per the original statement of material facts. (emphasis added)
Has a miscarriage of justice occurred?
27 An appellate court will not set aside a conviction based on a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred. The circumstances in which a conviction based on a plea of guilty will be set aside were explained by Steytler P (Wheeler and Buss JJA agreeing) in Vella v The State of Western Australia [2006] WASCA 129 [26]:
It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. In such a case, the appellant must show that there has been a miscarriage of justice: Borsa v R [2003] WASCA 254 at [20]; Hogue v The State of Western Australia [2005] WASCA 102 at [22]. The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty,
(Page 12)
- being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like: Borsa at [20]; Meissner v R (1995) 184 CLR 132 at 157 per Dawson J and Hogue at [22]. However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed: Borsa at [20] and Harman v Ayling; unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996 at 5.
28 Steytler P's statement of principle was reproduced in substance by McLure P (Buss JA and Mazza J agreeing) in Mikulic v The State of Western Australia [2011] WASCA 14 [23]. See also Chowdhury v Kenny [No 2] [2012] WASCA 35 [8] (McLure P, Buss & Mazza JJA agreeing).
29 Section 6(1)(a) of the Act reads, relevantly:
Subject to subsection (3), a person who -
(a) with intent to sell or supply it to another, has in his possession …
(b) …
(c) …
a prohibited drug commits a crime …
30 Section 6(3) is not relevant for present purposes.
31 By s 3(1) of the Act, in the Act, unless the contrary intention appears:
to possess includes to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb 'to possess' have correlative meanings;
to supply includes to deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied.
32 The extended definition of 'to supply' in s 3(1) was introduced into the Act by the Misuse of Drugs Amendment Act 1998 (WA) to overcome the decision in Manisco v The Queen (1995) 14 WAR 303. In that case the Court of Criminal Appeal held that where an accused was in possession of a prohibited drug as a bailee for the person who had given it to him or her, and had the drug in his or her possession for no other purpose and with no other intention than to return it to that person or to
(Page 13)
- permit that person to take or retake possession of it, the purpose/intention of the accused/bailee did not fall within the meaning of the undefined word 'supply' as then used in s 6(1).
33 The effect of the extended definition of 'to supply' is, relevantly, to make s 6(1)(a) applicable where the accused has been given the prohibited drug by another person, and the accused is in possession of the drug with a view to its being returned to or taken by that other person at some time. Accordingly, s 6(1)(a) applies to a person who is in possession of a prohibited drug merely as a bailee for another. See Pinkstone v The Queen [2004] HCA 23; (2004) 219 CLR 444 [49] (McHugh & Gummow JJ); Davies v The State of Western Australia [2005] WASCA 47; (2005) 30 WAR 31 [8] - [10] (Steytler P), [26] - [29], [37] - [40] (Roberts-Smith JA), [43] - [47] (McLure JA).
34 The appellant has admitted that at all material times he was in possession of the methylamphetamine and heroin the subject of counts 1 and 2.
35 It is plain, from pars 7, 8 and 16 of his affidavit, that according to the appellant:
(a) Mr Do was the owner of the drugs in question;
(b) Mr Do intended to sell the drugs; and
(c) the appellant was in possession of the drugs with the purpose or intention of relinquishing that possession at some time by returning the drugs to Mr Do or permitting him to take or retake possession of them.
36 On the version of the facts advanced by him, the appellant was, in each case, in possession of a prohibited drug with intent to supply it to another, contrary to s 6(1)(a). See Davies [8], [10], [38], [47].
37 Counsel for the appellant submitted that the appellant and Mr Do had joint possession of the methylamphetamine and heroin the subject of counts 1 and 2. However, even if that contention is correct, it does not avoid or detract from the appellant's criminal liability under s 6(1)(a). It is well-established by the case law that a prohibited drug may be possessed, within s 6(1)(a), solely by one person or jointly by two or more persons. See Davies [8], [10], [38], [47]; Ritchie v The Queen [2005] WASCA 84 [53] (Pullin JA, Wheeler JA & Miller AJA agreeing); Ricciardo v The State of Western Australia [2010] WASCA 116 [34] (Buss JA, McLure P
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- & Mazza J agreeing). The appellant's possession or joint possession was for or on behalf of Mr Do and subject to Mr Do's rights as the owner.
38 It is apparent from the appellant's affidavit and his counsel's written submissions (in particular, par 3 of those submissions) that the appellant and his counsel erroneously believed that where an accused is in possession of a prohibited drug as a bailee for the owner, and the accused has possession of the drug for no other purpose and with no other intention than to return it to the owner or to permit the owner to take or retake possession, the purpose/intention of the accused/bailee does not fall within the extended definition of 'to supply' in s 3(1).
39 The facts admitted or asserted by the appellant constitute, as a matter of law, an admission of guilt in relation to the elements of the offences alleged in counts 1 and 2. He therefore has no reasonable prospect of establishing that a miscarriage of justice occurred as a result of his having pleaded guilty to those counts. It is unnecessary, in the circumstances, to resolve the conflicting evidence in the appellant's affidavit on the one hand and Ms King's affidavit on the other.
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