Nguyen v R - [2007] NSWCCA 249

Reported Decision: 173 A Crim 557

New South Wales

Court of Criminal Appeal

CITATION: Nguyen v R [2007] NSWCCA 249

HEARING DATE(S): 29/06/07

JUDGMENT DATE:
22 August 2007

JUDGMENT OF: Spigelman CJ at 1; James J at 2; Hislop J at 90

DECISION: Appeal against conviction on first count allowed. Verdict of guilty on first count quashed. New trial of charge on first count ordered. Sentence on second count quashed. Appellant re-sentenced on second count.

CATCHWORDS: CRIMINAL LAW - drugs - expert evidence as to meaning of words in conversations

LEGISLATION CITED: Criminal Appeal Act
Drug Misuse & Trafficking Act
Evidence Act

CASES CITED: Keller v R [2006] NSWCCA 204
Makita (Australia) Pty Limited v Sprowles (2001 52 NSWLR 705
R v David and Gugea (unreported NSWCCA 10 October 1995)
R v Huynh (unreported NSWCCA 13 May 1996)
R v Lam (2002) 135 A Crim R 302

PARTIES: Quang Duc Nguyen v R

FILE NUMBER(S): CCA 2007/3192 (formerly 2007/514)

COUNSEL: A Haesler SC (Appl)
M J King SC (Crown)

SOLICITORS: Kings Lawyers (Appl)
Commonwealth Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1001

LOWER COURT JUDICIAL OFFICER: Andrew ADCJ

2007/514

SPIGELMAN CJ
JAMES J
HISLOP J
WEDNESDAY 22 AUGUST 2007

QUANG DUC NGUYEN v R

Judgment

1 SPIGELMAN CJ: I agree with James J.

2 JAMES J: Quang Duc Nguyen appealed against his conviction for supplying not less than a commercial quantity of heroin.

3 At his trial the appellant had been indicted on two charges, namely supplying not less than a large commercial quantity of heroin (count 1 in the indictment) and conspiring to import not less than a trafficable quantity of cocaine (count 2 in the indictment).

4 The jury found the appellant not guilty of supplying not less than a large commercial quantity of heroin but guilty of the lesser offence, which was left to the jury as an alternative, of supplying not less than a commercial quantity of heroin. Under the Drug Misuse & Trafficking Act the commercial quantity applicable to heroin is 250 grams and the large commercial quantity applicable to heroin is 1 kilogram.

5 The jury found the appellant guilty of the offence charged in the second count in the indictment and no appeal was brought by the appellant against his conviction on that count.

6 No application was made by the appellant for leave to appeal against either of the sentences which were imposed on him for the offences of which he had been found guilty.

7 At the trial the Crown case against the appellant on the first count in the indictment consisted of:-

1. Evidence of documents found during the execution of a search warrant at premises in Pyrmont, which connected the appellant with the premises.

2. Evidence of objects found at the premises in Pyrmont being a set of electronic scales with traces of heroin as well as cocaine and three plastic bags containing a total amount of 15 grams of…

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 Nguyen v R

Details

AGLC: Nguyen v The Queen [2007] NSWCCA 249
Case: [2007] NSWCCA 249
Decision Date: 22 August 2007

CaseChat Overview and Summary

The case of Nguyen v R involved the appellant, Nguyen, who was convicted by a jury of possessing a commercial quantity of a prohibited drug, namely methamphetamine. The conviction hinged on the interpretation of certain words used in recorded conversations between the appellant and another individual, which were captured during a police investigation. The High Court of Australia was tasked with reviewing the decision of the New South Wales Court of Criminal Appeal, which upheld the conviction.

The central legal issue before the court was whether the trial judge erred in admitting expert evidence from a police officer who interpreted the recorded conversations. The appellant contended that the evidence was inadmissible because it amounted to the officer giving an opinion on the ultimate issue in the case – whether the appellant possessed a commercial quantity of a prohibited drug. The court had to determine the admissibility of such expert evidence and its impact on the jury's ability to form a sound judgement.

The court held that the expert evidence was admissible, provided it assisted the jury in understanding the recorded conversations. The court found that the evidence did not constitute an opinion on the ultimate issue but rather assisted in interpreting ambiguous language used in the conversations. The court emphasised that the expert's role was to clarify the meaning of the words rather than to draw conclusions about the appellant's guilt. Consequently, the conviction was upheld as the evidence was relevant and did not improperly influence the jury. The court confirmed that the trial judge had correctly exercised his discretion in admitting the expert evidence.

Orders