Nguyen v R

[2008] NSWCCA 22

Reported Decision: 181 A Crim R 72

New South Wales

Court of Criminal Appeal

CITATION:	NGUYEN v R [2008] NSWCCA 22
HEARING DATE(S):	1 February 2008
JUDGMENT DATE:	14 February 2008
JUDGMENT OF:	Hodgson JA at 1; Kirby J at 46; Buddin J at 47
DECISION:	1. Appeal against conviction allowed. 2. Conviction quashed. 3. Order that there be a new trial on the cultivation count.
CATCHWORDS:	CRIMINAL LAW – Appeal against conviction – Duress – Whether threat directed towards procuring commission of offence – Whether threat sufficiently imminent - Whether appellant voluntarily joined illegal enterprise.
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 (NSW) s 23
CATEGORY:	Principal judgment
CASES CITED:	Clarkson v Regina [2007] NSWCCA 70 Darkas v the Queen [2006] HCA 34, (2006) 227 CLR 373 R v Baker and Ward [1999] 2 Cr App Rep 335 R v Dawson [1978] VR 536 R v Hudson [1971] 2 QB 202 R v Hurley and Murray [1967] VR 526 R v Lawrence [1980] 1 NSWLR 122 Weiss v the Queen [2005] HCA 81, (2005) 224 CLR 300
PARTIES:	Cuu NGUYEN (Appellant) REGINA (Respondent)
FILE NUMBER(S):	CCA 2005/4627
COUNSEL:	P Bodor QC (Appellant) J A Girdham (Crown)
SOLICITORS:	Ledinh Lawyers (Appellant) Solicitor for Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2004/11/1380
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ
LOWER COURT DATE OF DECISION:	16 December 2005

CCA 2005/4627

HODGSON JA
KIRBY J
BUDDIN J

14 FEBRUARY 2008

Cuu NGUYEN v REGINA

Judgment

1 HODGSON JA: In July and August 2005, the appellant was jointly tried with Dinh Them Nguyen in the District Court of New South Wales upon an indictment which charged both of them on a count of cultivating not less than a large commercial quantity of cannabis between 10 November 2003 and 29 January 2004, contrary to s 23(2) of the Drug Misuse and Trafficking Act 1985.

2 The indictment contained a further count against the appellant of using a prohibited firearm, on which count the trial judge directed a verdict of acquittal.

3 The jury returned verdicts of guilty on the cultivation count against the appellant and his co-accused. The appellant was sentenced to imprisonment for twelve years with a non-parole period of eight years.

4 The appellant appeals from his conviction and seeks leave to appeal from his sentence. The appeal was brought a little out of time, but there was no contention that it should be dismissed for that reason.

Established Facts

5 For the purpose of this appeal, the following facts can be taken as having been established.

6 The appellant with a number of other Vietnamese workers was employed as a farm worker at a large scale marijuana plantation on a property known as “Freshfields”, some distance from Dubbo. The principal organiser of the plantation was an Italian Mr Vincenzo Cannistra (Vince), who was assisted by a Vietnamese associate Ms Thi Ha Nguyen (Ms Ha). The appellant started work there at the end of October 2003, and was arrested together with eleven others at the property on 29 January 2004. At that time, the police located more than 30,000 cannabis plants on the property, some up to 1.8 metres high.

7 This had been the second occasion the appellant had worked at the property. In about March 2003, he had worked there for seventeen days in the processing of an earlier marijuana cultivation.

8 Another Vietnamese worker (T) was named as a lessee of the property, and the appellant had witnessed his signature to the lease in 2003.

9 On arriving at the property in about October 2003, the appellant and other workers did such work as clearing land, digging holes, placing fertiliser and installing part of an irrigation system. A little later, the workers planted the marijuana seedlings, and thereafter watered them and otherwise tended them.

The appellant’s case

10 The appellant gave evidence at the trial, to the effect that initially he did not know what type of crop would be planted at the farm; and that from the time he became aware that the crop was cannabis, he wished to leave the property, but remained there because of threats made to him.

11 He gave evidence that, while visiting a friend in March 2003, he was offered work which involved “farming work, cutting flowers”. He was told the work would be hard, he would be away from home for a few weeks, living conditions would be substandard; and he would be paid $400 per week. He accepted this offer, and was driven later that night with three others to the property.

12 For seventeen days, the appellant worked from 6.00 am to 6.00 pm, sometimes later, “cutting the big flowers into small pieces”. He gave evidence that he did not know what kind of flowers they were. Ms Ha, one of the overseers, told the workers that the flowers would be used to make “hot oil”. At the end of the work, the appellant was paid $7,200. Vince, the farm boss, thanked the workers and obtained their contact details.

13 Between late March 2003 and mid-April 2003 the appellant picked tomatoes in Queensland. In July 2003, he met Vince at a Club and there was talk about further farming work. Towards the end of August 2003, Vince and Ms Ha met with the appellant at the house where the appellant’s ex-wife and his two sons were living. At a subsequent meeting at this house in September 2003, Vince offered the appellant and his co-accused farming work for six to eight months for $200 a day.

14 At this meeting, the appellant was told that someone needed to lease the farm; and the appellant’s evidence was that he witnessed T’s signature on the lease about a week after he arrived at the property.

15 The appellant arrived at the farm on 25 October 2003. He realised it was the same property he had worked at earlier in the year. For the first month, he worked clearing the land and digging holes. The workers were then directed by Vince to plant new plants. The appellant gave evidence that he did not know what type of plant the seedlings were, but he was told by one of the workers that they looked like marijuana plants. The appellant then asked Vince what they were planting, and Vince replied “Italian tomato plants”.

16 About a week later, according to his evidence, the appellant spoke to T and said that, according to another worker, the plants look like marijuana plants; to which T said “I don’t know”. However, the appellant then overheard a conversation between Vince and another worker H, to the effect that they were marijuana plants; and the appellant again spoke to T. T then said he had agreed with Vince to cultivate marijuana. The appellant then said he had to leave this place as soon as possible, and T replied “You cannot leave this place”. The appellant told T the plants were illegal and dangerous and that he would “never for the sake of $200 a day put myself in such a situation”.

17 Shortly afterwards, according to the appellant’s evidence, Vince and H asked the appellant to go to an area of bush with them. When they got there, H grabbed him by the collar and said “Why do you dare to oppose the Italian Mafia?” The appellant responded that he didn’t want to oppose anyone, but the plants were illegal and it was unsafe for him and he just wanted to go elsewhere. His evidence continued:

Q. What did anybody say then?
A. [H] then let go of my collar. And Vince stepped forward and he pointed his finger at my face.

Q. Did he say anything?
A. At the time he was very angry and he spoke a mixture of both English and Italian, I didn't understand exactly what he was saying.

Q. What was your impression that he was saying?
A. I asked [H] "what the other man said?" [H] told me that he gave me a warning if I try to leave, and if I am caught, then the punishment for me will be I will never see Sydney again.

Q. What did you think that meant?
A. I was of the opinion that I would be dead and I wouldn't be able to see Sydney.

Q. So you would be stuck on the property, is that what you are saying?
A. No. If I escape and if they manage to catch me I would be dead.

Q. You would be dead. Did he say anything else?
A. And he also said that if I managed to escape they wouldn't be able to catch me, then he would make a phone call for someone to kidnap my son in Sydney.

Q. Did you say anything further?
A. Under the circumstances I couldn't say anything else.

Q. How did you feel about this?
A. I was terrified inside.

Q. They let you go back to your work?
A. They told me that I would be forgiven this time, but if it recurred he would really punish me.

HIS HONOUR: Q. Who would really punish you?
A. That means [H] and Mr Vince.

Q. So did you return to work?
A. Yes, he allow me to go back to work with the other people.

Q. And what work did you do?
A. I chopped down trees to make poles.

LUCKMAN: Q. Did you ever try to leave?
A. Even when I was sleeping I was thinking of a way to escape from that place.

Q. Did you ever try, did you ever actually try to leave?
A. No, I didn't have sufficient courage to escape from that place.

Q. Did you ever think about trying to run down to the road and get to the police station near town, did that cross your mind?
A. I did think about that, and I also thought about if I tried that and I hadn't managed to flag down a vehicle and report the matter to the police, and I was caught, what would happen to me.

Q. If you had got to the police what do you think would have happened to your children?
A. I was also had fear that had I informed the police, they would have asked the gang members in Sydney to kidnap my son.

18 In cross-examination, the appellant said that he had heard that the Italian Mafia “were a very vicious group who kidnapped people and also killed people”. There was also this exchange in cross-examination:

Q. When you went from Sydney, when did you do this, when did you prepare this plastic bag?
A. Well, about the time when I knew that it was an illegal activity regarding what they were doing. It was possibly one or two days following my argument with [T].

Q. So then you prepared a pack which contained that information and hid it somewhere?
A. No, I wasn't hiding it anywhere. I just hung it against the wall.

Q. So then when the police searched they would have seen your wallet and your identification hanging from wherever you kept it?
A. I don't know anything regarding that.

Q. So is this the position, that you seriously thought of making preparation for a possibility?
A. Yes, because I was doing a lot of thinking then. Many nights I wasn't able to sleep because of it.

Q. What about the Mafia and your children at that time, if you did that?
A. What exactly is your question?

Q. You were told if you escaped and you got away, your children would be at risk from the Mafia, the Italian Mafia?
A. Yes, that was one problem that troubled me very much, and that caused me a lot of hardship in my mind.

19 According to a video recorded conversation between police and the appellant made at Freshfields on 29 January 2004, the appellant was arrested there at 6.15 am. In that conversation, which was said to have concluded at 7.25 am, the appellant was asked whether there was anything he would like to tell them in regard to his involvement there. There followed the following exchange:

CN: Yeah, I live in Sydney um, I looking for a job,

DJ: yes
CN: people told me I got the farmer job here, the farmer job, …IND… they take me to some fruiting here, when come they forced me to do the illegal, we are bad luck case if you come here, they forced me to do the job we are a bad luck case if you come here

DJ: So what you are saying you are being forced to be here.
CN: yeah yeah, when we come here we have no way to get out

DJ: No way to get out, okay, can I ask you, what do you do here
CN: when we here, We water the plant a bit

DJ: Sorry the, What do you water
CN: Yeah

DJ: No, Sorry what to you water.
CN: got a hole to water, the plant

DJ: Oh the plant, do you know what is being grown here on these premises, on the property
CN: We don't know nothing

DJ: Do you know what the plant is
CN: The first month I don't know, the second month I know but I not allowed to get out.

20 An ERISP transcript was made at Dubbo Police Station, commencing 11.57 am the same day. In the course of that interview, there were the following questions and answers:

Q563 Did they say about coming home or how they’d take you home?
A When we see, when we see when we know that that is our, this …. This plant, we know that too dangerous for us, we want to get out, but we cannot.

Q564 Why couldn’t you?
A Because you see, sometime they got the gun, I think to tell us not, not allowed to get out.

Q565 Who wanted to get out?
A I want to get out.

…

Q604 O.K. Although it was not legal, and it was wrong, you, were you happy to keep on doing what you were doing to get your $200 a day?
A When we, when we, discovered and know that, that they not legal ---

Q605 Not legal. Yes?
A ---to do the job, we tried to, anytime, we’d sit together, we tried to get out.

Q606 Tried to get out. O.K. If you, when you tried to get out, did you still want your $200 a day?
A No.

21 The police located a number of firearms on the property, including a 12 gauge repeating pump action shotgun and a loaded Browning pistol.

Ruling of primary judge

22 The primary judge refused to leave any issue of duress to the jury, giving the following reasons:

Assuming the threats were made, there is no evidence that following that threat anything further was said in relation to work, that he was compelled to do anything, or threatened in any way in relation to any work that he subsequently carried out.

The threat in my opinion was one related to something unconnected with the commission of the offence, it was a threat of retribution. If a person concerned with the commission of a criminal offence, that is cultivation, should leave the premises, in my opinion the threat, assuming it was made, was related more to the desire of the people there to avoid detection, but nothing else.

…..

There is no evidence in my opinion that could be said to lead to the possibility that the accused was cultivating marijuana under duress. To restate it, in my opinion the threat, if any, was to reinforce a previous arrangement that they were not to stray more than 10 metres from the fence, that being done so that they would not come to the attention of other persons. The threat was not made for the purpose of causing Mr Cuu to carry out his work. It was made for the purpose of ensuring that he did not leave the place and perhaps tell others where he had been.

I do not go on to consider questions such as, could he have avoided the threat by leaving the premises; could he have waited reasonably until [H] and Mr Cannistra were no longer around and left. These are matters which, in my opinion, would necessarily have to be decided by the jury, if I left the matter to them to decide. They are not matters which I would make the subject of some separate decision.

But in my opinion the threats, to make it clear, were not related to the subject matter of the indictment, that is cultivating cannabis plants, so they were not directed to compelling the accused to carry out a crime. The threats do not extend in my opinion to anything beyond that. To give a direction as sought by Mr Luckman would be to extend the meaning of duress to a new level in my opinion.

23 After the jury retired to consider its verdict, it raised a question “Is the argument the accused was under duress still a question for consideration?” The primary judge responded that it was not an issue.

Grounds of Appeal

24 The appellant raises the following grounds of appeal:

1. The learned trial judge caused the trial to miscarry when he refused to allow duress to be put to the jury.

2. The applicant has a legitimate grievance arising from disparity of sentence with his co-offenders.

25 I will deal first with the appeal against conviction.

Submissions

26 The essence of the appellant’s submissions is contained in paragraphs 44 and 47 of the written submissions of Mr Bodor QC for the appellant:

44. The evidence established that the appellant was brought to a relatively isolated property by members of a criminal organisation to work in substandard conditions on a large-scale cannabis plantation. The workers were expected to toil for long hours and had restrictions placed on their movements. The organisers of the plantation had access to firearms. There was no evidence which suggested that workers would be accommodated and tolerated on the property as guests if they declined to work on the cultivation. In these circumstances, the jury could reasonably have found that the threats made to the appellant, concerning what would happen if he tried to leave the property, were directed toward or extended to any attempt by the appellant to cease working on the plantation. The evidence pointed unequivocally to the fact that while workers remained on the property, they were expected to work on the cultivation, and indeed do so under difficult conditions.

…..

47. It is submitted that the appellant discharged his evidentiary onus to point to or produce evidence from which it could be inferred that there is at least a reasonable possibility that the otherwise criminal acts of the appellant were performed under duress: R v Youssef (1990) 50 A Crim R 1 at 3; c.f. R v Abusafiah (1991) 24 NSWLR 531 at 544E. Once this evidential onus had been discharged, it fell upon the prosecution to negative any reasonable possibility that the appellant acted under duress. The trial judge should have put duress to the jury in that way: R v Lawrence [1980] 1 NSWLR 122; R v Abusafiah .

27 For the Crown, reliance was placed on R v Lawrence [1980] 1 NSWLR 122, where the Court of Criminal Appeal stated to the effect that the defence of duress was available where a person did acts that were otherwise criminal by reason only of his mind being then overborne by threats of death or serious bodily violence, whether to himself or another, provided that an average person, of ordinary firmness of mind, of like age and sex and in like circumstances, would have done so.

28 The Crown submitted it was not available:

1. Where an accused knowingly joined an illegal organisation or otherwise voluntarily put himself or herself in a position where he or she was likely to be subjected to illegal compulsion: R v Baker and Ward [1999] 2 Cr App Rep 335.

2. Where the accused does not avail himself or herself of an opportunity reasonably open to escape from duress, which an average person, of ordinary firmness of mind, of a like age and sex and in like circumstances, would have taken: Lawrence.

3. Where the threat was not directed towards producing the commission of the offence with which the accused is charged: R v Dawson [1978] VR 536; Clarkson v Regina [2007] NSWCCA 70.

29 The Crown accepted that, where the defence is properly raised, the Crown must exclude it beyond reasonable doubt; but submitted that the defence is not raised unless there is evidence capable of supporting a reasonable possibility of each of its elements.

30 In this case, the Crown submitted, the appellant at no stage said he committed the offence because of threats. Further, as stated by the primary judge, the threats were only of consequences that would follow if the appellant left the site, and they did not require the appellant, under threat of serious harm, to cultivate the cannabis.

31 In addition, the Crown pointed out that the appellant, having been involved in a previous cultivation of cannabis, voluntarily undertook to do further work with the same organisation.

32 Finally, the Crown submitted that, if the Court took the view that the primary judge was in error in withholding the defence from the jury, there was no substantial miscarriage of justice; and that accordingly it was appropriate to dismiss the appeal on the basis of the proviso to s 6(1) of the Criminal Appeal Act 1912. Having reviewed the whole record of the trial, the Court would be satisfied beyond reasonable doubt that any belief by the appellant that the conduct constituting the offences was a reasonable response to the threats was not reasonable, and/or that any belief by the appellant that there was no reasonable way the threats could be rendered ineffective was not reasonable, and/or that the appellant did voluntarily put himself in a position where he was likely to be subjected to illegal pressure: Weiss v the Queen [2005] HCA 81, (2005) 224 CLR 300 at [41]-[47]; Darkas v the Queen [2006] HCA 34, (2006) 227 CLR 373 at [84], [94]-[96].

Was duress properly raised?

33 The reasons given by the primary judge were to the effect that the threats were not made to cause the appellant to carry out the work, but only to ensure he did not leave the property; and the Crown submitted that this was correct, relying inter alia on R v Dawson [1978] VR 536.

34 In that case, the applicant had been charged with the offence of escaping from prison; and he sought to raise a defence of duress, leading evidence that he escaped because he feared for his life as a result of threats made against him in prison. The trial judge ruled the defence of duress was not open, and the applicant was convicted. In the Full Court of the Supreme Court of Victoria, Anderson J (with whom Starke J agreed) and Harris J both quoted with approval the following passage from the judgment of Smith J in R v Hurley and Murray [1967] VR 526 at 543:

Where the accused has been required to do the act charged against him (i) under a threat that death or grievous bodily harm will be inflicted unlawfully upon a human being if the accused fails to do the act and (ii) the circumstances were such that a person of ordinary firmness would have been likely to yield to the threat in the way the accused did and (iii) the threat was present and continuing, imminent and impending (as previously described) and (iv) the accused reasonably apprehended that the threat would be carried out and (v) he was induced thereby to commit the crime charged and (vi) that crime was not murder, nor any other crime so heinous as to be excepted from the doctrine and (vii) the accused did not, by fault on his part when free from the duress, expose himself to its application and (viii) he had no means, with safety to himself, of preventing the execution of the threat, then the accused, in such circumstances at least, has a defence of duress.

35 Anderson J at 538 said that, in all cases relating to duress of which he was aware, “the offence which the accused person has been constrained to commit has been a particular offence nominated by the person making the threats”. Harris J at 542-3 held to the effect that the defence was available only when threats were made to coerce the accused to commit the act which was the basis of the offence of which he was charged. On that basis, the Full Court held the primary judge was correct on the question of duress. It also held that the defence of necessity was not open.

36 I accept, on the basis of this and other decisions, that the defence of duress in this case would require that the threats in question were made to coerce the accused to cultivate cannabis. I understand that this would require that what was said and done by the threateners actually manifested an intention to coerce the appellant, not merely not to leave, but also to go on working; and that the appellant so understood them. The question then is, was the evidence capable of supporting a reasonable possibility that this could have been the case.

37 In my opinion, the following two considerations indicate that the evidence was so capable:

1. It may be considered unlikely that Vince would continue to provide food and shelter for the appellant for an extended period if the appellant did not work, so that for the appellant to remain on the farm but not to work may not have appeared either to the appellant or to Vince as a viable option.

2. That this is how the appellant saw the situation could be seen as being confirmed by his statement in the video recording, made shortly after his arrest, that “they forced me to do the illegal.”

38 Although the primary judge did not rely on this, it could be said that the threat that the appellant would never see Sydney again and the threat to kidnap his son were not threats of sufficient gravity or immediacy to satisfy the test. I note that there is in Lawrence reference to a requirement that the threat be of immediate death or serious bodily violence; but in my opinion the better view is that it is sufficient if the threat is continuing, imminent and impending, as stated by Smith J in Hurley. In the case of R v Hudson [1971] 2 QB 202, referred to by the Court in Dawson, the English Court of Criminal Appeal held that it was a question for the jury whether a threat of violence to two young girl witnesses if they did not perjure themselves was sufficiently imminent, where the person who made the threat sat in the court where the girls were giving evidence and was seen there by the girls.

39 In the present case, the defence would require that the threat be of death or serious bodily violence to the appellant or his son, in the event that the appellant did not do what it was that the threatener required, and also that this threat be continuing, imminent and impending. In my opinion, the evidence is capable of supporting a reasonable possibility that this was so.

40 The defence would be excluded if the appellant voluntarily joined an illegal organisation. The Crown case is that he must have known that he was working with cannabis on the previous occasion, so he must have known that he was being recruited by Vince for another illegal operation. The appellant denied this in his evidence; and in my opinion, it was a question for the jury whether he should be disbelieved about this, beyond reasonable doubt.

41 Accordingly, in my opinion the primary judge was in error to exclude the defence of duress.

Proviso

42 In my opinion this is not a case where the Court should dismiss the appeal on the basis of the proviso. Duress was the appellant’s only real defence, and because of what I consider to be an error of the primary judge, his only defence was not considered by the jury at all. In those circumstances, I doubt if it would be appropriate for the Court of Criminal Appeal in effect to try the only issue raised by the appellant, which had not been addressed by the jury, by reviewing the whole of the record in order to see if it is satisfied beyond reasonable doubt of the appellant’s guilt. To do this would be to substitute trial on the record by the Court of Criminal Appeal for trial by jury.

43 In any event, having carefully considered the appellant’s evidence of duress, together with the remainder of the record as summarised by the Crown in its Summary of Trial, and taking into account the disadvantage of an appellate court which has not seen the appellant and other witnesses, I do not in any event see how this Court could be satisfied beyond reasonable doubt of the appellant’s guilt, so as to be satisfied that there was no substantial miscarriage of justice.

CONCLUSION

44 It follows that the appeal against conviction should be allowed and a new trial ordered. It is accordingly not necessary to consider the application for leave to appeal against the sentence.

45 I propose the following orders:

1. Appeal against conviction allowed.

2. Conviction quashed.

3. Order that there be a new trial on the cultivation count.

46 KIRBY J: I agree with Hodgson JA.

47 BUDDIN J: I agree with Hodgson JA

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