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 heroin.

3. Evidence of what was said in a large number of lawfully intercepted telephone conversations (approximately seventy) between the appellant and other persons.

4. Evidence by a police officer Det Sgt Luc Nguyen, who was a native Vietnamese speaker and who had had considerable experience in investigating the supplying of prohibited drugs, that the intercepted telephone conversations, while not, on the literal ordinary meaning of the words spoken, relating to the supplying of drugs, had been conducted in a kind of code or cryptic language and did really relate to the supplying of heroin and no other drug, and in many cases to specific amounts of heroin.

5. Schedules prepared by Sgt Nguyen. In Sch A, which became exhibit 68 in the trial, literal English translations were given of Vietnamese words which, on the Crown case, were commonly used by Vietnamese drug dealers to refer to particular quantities of heroin, ranging from .2 of a gram to 1 kilogram. In Sch B, which became exhibit 69 in the trial, Vietnamese words or English translations of Vietnamese words were given, which, on the Crown case, were used by Vietnamese drug dealers to refer to the drug heroin and particular quantities of heroin. In Sch G, which became exhibit 73 in the trial, Vietnamese words were given which, on the Crown case, were all words used by Vietnamese drug dealers to refer to money generally or to particular amounts of money.

8 At the trial it was not disputed by the appellant that he had been a party to all, or virtually all, of the approximately seventy telephone conversations or that the literal translations which had been made into English of the conversations, which had been conducted in the Vietnamese language, were accurate literal translations. Nor was it disputed that the conversations had been conducted in a kind of code and that many of them did relate to drug transactions. However, it was asserted by the appellant in evidence he gave at the trial that those conversations which related to drugs related to the supply of drugs other than heroin and to smaller quantities than the Crown alleged.

9 The grounds of appeal against conviction were:-

1. The trial judge erred in admitting opinion evidence from Sgt Luc Nguyen

2. The trial judge erred in admitting opinion evidence from Sgt Luc Nguyen in the form of drug code tables

3. The trial judge erred in failing to direct the jury regarding how they were to approach the opinion evidence of Sgt Luc Nguyen

4. The trial judge erred in failing to direct or warn the jury regarding the caution that needed to be taken when evaluating the evidence given in relation to each separate count on the indictment

10 I will now proceed to consider each of the grounds of appeal.

1. The trial judge erred in admitting opinion evidence from Sgt Luc Nguyen

11 Although there is no copy of the statement in the appeal papers, it can be inferred from other documents, copies of which are included in the appeal papers, that Sgt Nguyen made a first statement, in which he set out literal translations into English of each of the intercepted telephone conversations and then added opinions he had formed about what certain words and expressions used in the conversations really meant and opinions he had formed about what the parties to the conversations were really doing or intending to do.

12 A document described as a statement of facts, a copy of which is in the appeal papers, was prepared. This document incorporated the literal translations into English of the intercepted telephone conversations and Sgt Nguyen’s opinions about the real meanings of words and expressions used in the conversations and about the real nature of the conduct of the parties to the conversations. Sgt Nguyen’s opinions were placed within brackets in the statement of facts.

13 Sgt Nguyen then made a further statement which he commenced making on 19 May 2004, a copy of which is in the appeal papers.

14 It is apparent from the statement of facts and Sgt Nguyen’s further statement that Sgt Nguyen’s command of English is less than perfect. In quoting parts of the statement of facts or the further statement I will quote the parts verbatim, without attempting to correct Sgt Nguyen’s English.

15 In his further statement Sgt Nguyen set out his qualifications and experience, including that he had been a member of the New South Wales police service for almost twenty years, that he had been involved in the investigation of drug dealing and organised crime by persons of South East Asian nationality since 1994 and that he had on hundreds of occasions listened to recordings of conversations relating to the supply of prohibited drugs. He had become extremely familiar with “drug related terminology, drug related prices and the methods of operation” of drug dealers.

16 In his statement Sgt Nguyen then set out what he asserted were the most common quantities in which heroin is sold and some of the more popular terms used by drug dealers in referring to each of these quantities. This part of Sgt Nguyen’s statement was in similar terms to Sch B (exhibit 69).

17 Sgt Nguyen then said in his statement that he had been shown the statement of facts and that the information in the statement of facts was the same as the information contained in his earlier statement. Sgt Nguyen then proceeded to deal with each of the intercepted conversations. These parts of his statement were in the same terms as the statement of facts, and hence his earlier statement, except that he sometimes added further opinions he had formed and in respect of some of the conversations he nominated a specific quantity of heroin as being the quantity of heroin the parties to the conversation were discussing.

18 At the trial counsel for the appellant did not object to certain parts of the evidence proposed to be given by Sgt Nguyen, as set out in his statements, including evidence of the literal translations into English of the intercepted conversations. However, objection was taken to Sgt Nguyen giving evidence of the opinions he had formed, although it is unclear whether the objection extended to evidence of all of the opinions Sgt Nguyen had formed.

19 A voir dire inquiry was held in which the statement of facts, but neither of the statements by Sgt Nguyen, was placed before the trial judge. No oral evidence was given in the voir dire inquiry by Sgt Nguyen or by any other witness.

20 After the hearing of the voir dire inquiry had concluded, the trial judge delivered a judgment containing his rulings. In his judgment the trial judge said in part that there had been no challenge to Sgt Nguyen’s expertise; that Sgt Nguyen could give evidence that among drug dealers certain words, not ordinarily used to describe drugs, are used to describe drugs, in the hope of preventing other persons who happen to hear what is said knowing what the speakers are talking about; that Sgt Nguyen could give evidence “as to the meaning of words and expressions recognised as argot of the drug trade”; and that Sgt Nguyen could give evidence about what prices and quantities of drugs were being discussed. However, the trial judge held that “it is impermissible to give evidence of what a person means when he uses certain words and phrases, that is a witness cannot give evidence of what is in the mind of the person who is speaking or speculate as to what he is meaning”.

21 His Honour then proceeded to apply his general rulings to each of the intercepted conversations as set out in the statement of facts. The rulings made by his Honour with respect to the first six of the conversations were typical of the rulings made by his Honour and I will now set out the relevant paragraphs of the statement of facts and then the corresponding parts of his Honour’s judgment.

Statement of Facts

“5. At 21:04 on 18 June 2003, during a telephone conversation between Quang (the appellant) and a Vietnamese male person named Thanh, Thanh said, ‘Hello, hello, have you finished charging the battery yet?’ Quang said, ‘Uh..I have’. Thanh said, ‘Since you’ve finished charging the battery, I’m coming over, otherwise I’ll get sick, you know.’ Quang said, ‘Er..who?’ Thanh said, ‘Me.’ Quang said, ‘Why?’ If you didn’t charge the battery, I’d get sick, you know.’ Quang said, ‘Oh really?’ [ The term ‘charging the battery’ used in this conversation refers to preparing the heroin .]
6. At 14:12 on 19 June 2003, during a telephone conversation between the accused Quang and a Vietnamese male person named Thanh, Thanh said, ‘Yeah, I came up to recover the money from that fuckin’ bitch.’ Quang said, ‘Oh did you?’ Thanh said, ‘Yes.’ Quang said, ‘ind.’ Thanh said, ‘The ten dong man, you know’. Quang said, ‘Really?’ [ The term ‘dong’ used in this conversation refers to one thousand dollars. ]
7. At 14:31 on 21 June 2003, during a telephone conversation between the accused Quang and a Vietnamese male person named Thanh, Thanh said, ‘Uh how much did you say you had your fridge repaired the other day?’ Quang said, ‘Uh..’ Thanh said, ‘Cause a friend of mine’s just got one fridge that broke down.’ Quang said, ‘Leave it till the afternoon when I get back, leave it till the afternoon when I get back then I’ll have a look, yeah’. Thanh said, ‘The sooner the better, alright?’ Quang said, ‘Okay okay okay.’ Thanh said, ‘Okay bye’ [ The term ‘fridge’ used in this conversation refers to an ounce (28g) of heroin and that the accused Quang agreed to check it when he got back home. ]
8. At 16:03 on 21 June 2003, during a telephone conversation between the accused Quang and a Vietnamese male person named Quy/Qui, Quang said, ‘Yeah, brother Quy, it’s me Quang.’ Quy said, ‘Mm I know.’ Quang said, ‘Mm well any news brother?’ Quy said, ‘No news as yet.’ Quang said, ‘No news as yet?’ Quy said, ‘Mm.’ Quang said, ‘Okay, let me know straight away when you’ve got any news, alright?’ Quy said, ‘Mm mm.’ [ Quang was anxious about when Qui/Quy would want to purchase heroin from him ]
9. At 16.34 on 21 June 2003, during a telephone conversation between the accused Quang and a Vietnamese male person named Hung, Hung said, ‘Yeah, listen brother, have you got any good looking girl that you can introduce me?’ Quang said, ‘Who’s this?’ Hung said, ‘It’s Hung, it’s Hung, It’s Hung.’ Quang said, ‘Uh yes yes.’ Hung said, ‘Mm I’ll see you tonight, alright?’ And please let me have a look at the photo if you’ve got one ind’ Quang said, “Okay okay okay okay.’ [ The terms ‘good looking girl’ and ‘photo’ used in this conversation refers to heroin with good quality and sample of heroin respectively and that the accused Quang agreed to meet with Hung for the purpose of supplying heroin. ]
10. At 20:08 on 21 June 2003, during a telephone conversation between the accused Quang and a Vietnamese male person, Quang said, ‘Yes, chief, can check this you?’ Male said, ‘Mm.’ Quang said, ‘Um…chief…how much did it cost you er…to have…the fridge repaired the other day?’ [ The term ‘fridge’ used in this part of the conversation refers to half-unit (350g) of heroin ] Male said, ‘Said the other day that they probably fixed it for eighty (80) dong a day, you know.’ [ The term ‘eighty dong’ used in this part of the conversation refer to eighty thousand dollars, which is the price for half-unit of heroin ] Quang said, ‘No, I am talking about the kind of Chinese fridge, not a Japanese one, you know.’ The terms ‘Chinese one’ and Japanese one’ used in this part of the conversation refer to heroin of not-so-good quality and heroin of good quality respectively. And when Male said, ‘The Chinese one?’ Quang said, ‘Yes’ Male said, ‘That’s it. They said (ind) eight dong per day. (ind) said they charge higher fees for the labour, remember?’ Quang said, ‘Nuh, I thought the labour fee for is seventy-five (75) dong, yeah?’ [ The term ‘labour fee’ used in this part of the conversation refer to the price of half-unit of heroin. ] Male said, ‘..the catalogue, you know.’ [ The term ‘catalogue’ used in this part of the conversation refers to sample of heroin. ] Quang said, ‘Alright. Still keep their catalogue, yeah? That means um…the labour charged for repairing is eight or seventy-five?’ Male said, ‘Eighty.’ Quang said, ‘Eighty for labour fee?’ Male said, ‘Mm.’ Quang said, ‘I said seventy five, didn’t I?’ Male said, ‘Yeah, you yourself said seventy-five chief.’ Quang said, ‘Okay okay.’ Male said, ‘Mm” Quang said, ‘Alright then, chief can you organise for me to meet the thingo, alright? Organise me…’ Male said, ‘to see the ruler, yeah?’ Quang said, ‘Yes yes look at the book…’ Male said, ‘ind’ Quang said, ..to see how it looks.’ Male said, ‘Mm.’ [ The terms ‘the ruler’ and ‘the book’ used in this part of the conversation refer to the sample of heroin and that the accused Quang would want to have the sample of heroin in order to decide whether to purchase half-unit of heroin for the purpose to supply to VU Tien Hung. VU Tien Hung and VU Van Phu were later charged by police in relation to supplying 793 gm of heroin”.

22 The corresponding parts of his Honour’s judgment were as follows:-

“The first par in that statement is par 5.
The proposed evidence is an explanation of the term ‘charging the battery’. In my view that is permissible evidence as expert evidence of the argot of the drug trade.
Paragraph 6. In my view the explanation of the term ‘dong’ is permissible evidence.
Paragraph 7. An explanation of the term ‘fridge’ in my view is permissible. But as to what the accused then agreed to do is not expert evidence in this context so the question in my view is one of fact for the jury. Those are the words that the ‘accused Quang agreed to check it when he got back home’.
Paragraph 8. The statement is ‘Quang was anxious about when Qui/Quy would want to purchase heroin from him’. In my view it is not expert evidence but speculation and a question of fact for the jury.
Paragraph 9. The evidence as to the meaning of terms ‘good looking girl’ and ‘photo’ in my view is properly expert evidence, but the words ‘the accused agreed to meet with Hung for the purposes of supplying heroin’ in my view is not expert evidence but a question of fact for the jury.
Paragraph 10. The opinion evidence as to the explanation of the meaning of certain words as to the weights and values in my view is legitimately expert evidence in this context and is allowed. But the words ‘and that the accused Quang would want to have the sample of heroin in order to decide whether to purchase half a unit of heroin for the purpose of supply to Vu Tien Hung. Vu Tien Hung and Vu Van Phu were later charged by police in relation to supplying 793 grams of heroin’ in my view are findings of facts and not expert evidence.”

23 After the trial judge had given his judgment in the voir dire inquiry Sgt Nguyen gave evidence in the trial. From time to time while Sgt Nguyen was giving evidence counsel for the appellant at the trial made further objections, either in effect renewing his earlier objections or contending that the evidence the witness was giving was going beyond what the trial judge had ruled would be permissible evidence.

24 The evidence given by Sgt Nguyen with respect to the first few conversations was typical of his evidence generally and I will now quote or summarise some of that evidence.

25 Conversation at 21.04 on 18 June 2003 (statement of facts par 5)

Sgt Nguyen gave evidence:-

“A. In my opinion the words ‘charging the battery’ in this conversation is not actually the battery itself. It is not a real battery. It is the code used by Tan so I believe the word using in the conversation is referring to drugs which I believe is heroin, that is what he is referring to, preparing the heroin, yes.”
…
“I’d get sick that is in my opinion, my understanding is, I don’t have any heroin so can you prepare some for me so I can sell or whatever”.

26 Conversation at 14.12 on 19 June 2003 (statement of facts par 6)

Sgt Nguyen gave evidence:-

“The ‘Ten Dong Man, you know’ in my opinion in this regard is conversation refer to ten thousand dong when it is referred to – if my understanding this, it should be ten thousand dong, it refers to ten thousand Australian dollars. That would mean ten thousand dong mean” .

27 Conversation at 14.31 on 21 June 2003 (statement of facts par 7)

Sgt Nguyen gave evidence that the word “fridge” was a reference to heroin.

28 Conversation at 16.03 on 21 June 2003 (statement of facts par 8)

In accordance with the ruling made by the trial judge, Sgt Nguyen did not give any evidence of any opinion concerning this conversation.

29 Conversation at 16.34 on 21 June 2003 (statement of facts par 9)

Sgt Nguyen gave evidence that:-

“’any good looking girl’….is refers to the good quality of heroin… and the word ‘photo’ is referred to ‘sample….of heroin’”

30 Conversation at 20.08 on 21 June 2003 (statement of facts par 10)

Sgt Nguyen gave evidence:-

“A. The ‘fridge’ used in this conversation I am of opinion that it refers to drugs and this drug I believe is heroin. That what it refer to.
Q. Are you able to tell us anything about the quantity?
A. The other thing here when you say ’80, 80 dong’, I am of opinion that the ’80 dong’ here is refer to 80 thousand.
Q. That’s 80 thousand Australian dollars?
A. That’s correct sir.
Q. How does that relate to heroin?
A. That is the price for the half as unit of heroin at the time, that is, 250 grams is 80 thousand dong”.

Sgt Nguyen gave further evidence:-

“In my opinion the word ‘catalogue’ used in this conversation is sample. That’s how I understand it”.

31 Further evidence given at the trial by Sgt Nguyen about words or expressions used in other conversations included:-

Conversation at 16.31 on 23 June 2003 – “I am of the “opinion” that the word ‘go eat out at restaurant’ refers to supply heroin”.

Conversation at 19.02 on 27 June 2003 – “the word ‘car’ used in this conversation, I am of the opinion that it refers to …. half a unit of heroin which is 350 grams”.

Conversation at 19.32 on 30 June 2003 – “’a bowl of pho’ (literally a kind of Vietnamese soup)…In this particular conversation …. Is an ounce of heroin”.

Conversation at 22.19 on 2 July 2003 – “the word ‘thingo’… in this telephone conversation I am of opinion that it refers to …. drugs… heroin”.

Conversation at 21.01 on 6 July 2003 – “in my opinion, these ‘two big girls, kids’ is referring to a full unit. A full unit is 700 grams of heroin”.

Conversation at 4.07 on 29 August 2003 – “… ‘thingo’ in this conversation, I think, in my opinion is referring to money”.

Conversation at 19.24 on 9 September 2003 – “I have the opinion that ‘one exact hour’ referred to in this conversation is referring to half a unit of heroin, which is 350 grams”.

Conversation at 15.37 on 11 September 2003 – “In this conversation the word ‘clothes’ I’m of the opinion that the word ‘clothes’ here is referring to heroin”.

32 On this appeal counsel for the appellant did not dispute that Sgt Nguyen could properly give some evidence which would have been based on his specialised knowledge. It was not disputed that Sgt Nguyen could give evidence that persons engaged in drug dealings often speak to each other in a kind of code or cryptic language, in which words and expressions which do not ordinarily refer to drugs are used by the speakers to refer to drugs. He could also give evidence that certain particular words and expressions, which do not ordinarily refer to drugs, are commonly used by drug dealers to refer to drugs.

33 However, it was submitted by counsel for the appellant, Sgt Nguyen could not give evidence that, in his opinion, particular words and expressions used in an intercepted conversation were in fact being used by the speakers to refer to drugs. Such an opinion could only have been formed by Sgt Nguyen on a basis which included other facts, apart from the mere use of the word or expression. For example, an opinion that the word “fridge” as used in a conversation was being used to mean heroin could not have been formed by Sgt Nguyen, simply on the basis of the use of the word “fridge”, because, as is obvious, there will be many conversations in which the word “fridge” has its ordinary literal meaning, that is “refrigerator”.

34 A conclusion that in a particular conversation the word “fridge” meant heroin could have been formed, only if there were other facts, apart from the use of the word “fridge” in the conversation, supporting a conclusion that the parties to the conversation were talking about heroin, for example, other facts police had gathered about the parties to the conversation indicating that the parties to the conversation were engaged in supplying heroin. However, in such circumstances, an opinion that the word “fridge” meant heroin would not be based wholly or substantially on the witness’s specialised knowledge and hence would not be admissible under s 79 of the Evidence Act. Furthermore, the other facts on which Sgt Nguyen’s opinion was based were not identified in his evidence and Sgt Nguyen had not disclosed any process of reasoning by which he had arrived at his opinion. Insofar as the further facts on which Sgt Nguyen had based his opinions were elicited in cross-examination, this confirmed that his opinions were not based wholly or substantially on his specialised knowledge.

35 In its written submissions the Crown, while opposing the allowing of the appeal against conviction, accepted that Sgt Nguyen should not have given evidence in the form in which he had and that it had become evident at the trial, particularly in cross-examination of Sgt Nguyen, that Sgt Nguyen had, at least in part, inappropriately allowed other information he had received to form part of the basis for his opinions.

36 On the hearing of the appeal the Court was referred to a number of cases, including 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 and Keller v R [2006] NSWCCA 204.

37 In David & Gugea, a case to which the Evidence Act 1995 did not apply, the evidence against each of the appellants, who had been charged with offences of supplying drugs, consisted mainly of conversations which had been recorded through telephone intercepts or listening devices. The conversations were in the Romanian language and literal translations into English had been made, the accuracy of which was not disputed. It was the Crown case that the conversations related to the supply of heroin. The appellants made unsworn statements at the trial denying that the conversations related to the supply of heroin and asserting that the conversations related to the purchase of gold and brandy and the supply of women for prostitution.

38 According to the ordinary literal meaning of the words used in the conversations, the conversations did not relate to the supply of drugs. However, evidence was given at the trial by a police officer (Sgt Drury) and an analyst and interpreter with the New South Wales Crimes Commission (Mrs Kandic) in which they expressed the opinion that the subject matter of the recorded conversations was in fact the supply of heroin.

39 In its judgment the Court of Criminal Appeal concentrated on the evidence given at the trial by Sgt Drury. The Court held that Sgt Drury, by virtue of his experience in drug law enforcement, was qualified to give expert evidence about the drug trade, notwithstanding that he relied not only on his personal experience but also, to some extent, on hearsay material. The Court continued :-

“He was entitled as an expert to give evidence that persons trafficking in illicit drugs never (or almost never) refer to drugs directly, even by the names such as ‘speed’ or ‘crack’ by which they are often known; rather, that illicit drug traffickers usually speak in a disguised manner (or in a code) in order to avoid anyone overhearing them becoming aware that they are discussing such activities, and (where relevant) as to the particular codes often adopted (the argot). None of that was in dispute in these appeals. What was in dispute was whether Sgt Drury was entitled to go further and give evidence that, in his expert opinion, the subject matter of these particular recorded conversations was in fact the supply of heroin”.

40 The Court concluded that, provided the witness explained how he had reached his opinion, an expert such as Sgt Drury would be entitled to give evidence that the conversations could be referring to the supply of heroin. However, he would not be entitled to give evidence that the conversations in fact referred to the supply of heroin. One objection to evidence being given in such a form was that it was liable to so influence a jury “that they would not trouble to make up their own minds”.

41 As the evidence given by each of the witnesses was in the form of an opinion that the subject matter of the recorded conversations was in fact the supply of heroin, the appeal against conviction was allowed.

42 David & Gugea was distinguished in Huynh, which was another case to which the Evidence Act did not apply. In Huynh the evidence against the appellant, who was charged with conspiring to supply heroin, included tape recordings of conversations. In the conversations the speakers sometimes specifically referred to heroin by name. At other times in the conversations language not literally referring to heroin was used but in contexts where there was discussion about prices, values at wholesale or street level, measurements and quantities and the mixing or diluting of the primary substance which was for sale.

43 In Huynh two witnesses with long experience in the investigation of drug trafficking (an officer of the Independent Commission against Corruption in Hong Kong and a police officer) gave evidence for the Crown, including evidence that in their opinions in particular parts of the conversations the parties were in fact talking about heroin.

44 The Court of Criminal Appeal held that the evidence of the expert witnesses was admissible and dismissed the appeal against conviction. The Court distinguished David & Gugea on the grounds that in David & Gugea there had not been, as there had been in Huynh, “all the background material, including the discussion of weights, measures, quantities and the like and specific discussion of drug dealing and heroin… here the evidence, apart from the opinion evidence, showed that the appellant was a dealer in heroin”.

45 In Lam Sgt Drury, the same witness who had given evidence in David & Gugea, gave expert evidence about what the Crown alleged were coded drug conversations. It would appear that, subject to one exception which was not the subject of any objection, Sgt Drury gave evidence in the form that certain words and expressions used in the conversations were consistent with, and could be references to, illicit drug dealing and not in the form that words and expressions used in the conversations did not in fact have their literal meanings and in fact referred to illicit drug dealing.

46 No objection was taken by counsel for Lam at the trial to any of the evidence given by Sgt Drury and the Court of Criminal Appeal disposed of the relevant ground of appeal against conviction by applying r 4 of the Criminal Appeal Rules.

47 The Evidence Act applied to the proceedings in Lam. Levine J, who gave the leading judgment in the Court of Criminal Appeal, referred to, and would appear to have accepted, a submission by the Crown that the legal position stated in David & Gugea continued to apply after the coming into force of the Evidence Act.

48 The appeal to this Court in Keller was heard and determined after the trial of the appellant in the present appeal, so that the trial judge in the present proceedings did not have the benefit of having this Court’s judgment in Keller.

49 In Keller the Crown alleged that Keller had agreed to purchase cocaine from a man named Purdie. The Crown case against Keller was largely based on intercepted telephone conversations between Keller and Purdie, which the Crown alleged were concerned with the making of arrangements between Keller and Purdie for the supply of cocaine. The appellant gave evidence at the trial in which he asserted that the conversations between himself and Purdie were about the purchase of a motor vehicle and had nothing to do with the supply of cocaine.

50 At the trial an Australian Federal Police officer named Smith, who had had training and experience in the investigation of drug offences, gave evidence in the Crown case of opinions he had formed about the meaning of various words used in the intercepted conversations between Keller and Purdie. The evidence Mr Smith gave included evidence to the effect that certain words and expressions used in the conversations were in fact references to drugs. That the witness’s evidence in the trial was given in this form was somewhat surprising, because in a statement by him which was the principal evidence in a voir dire inquiry held to determine the admissibility of his evidence, he had confined himself to expressing opinions that words used in the conversations were “consistent with” being references to drugs.

51 The leading judgment in the Court of Criminal Appeal in Keller was given by Studdert J, with whom the other members of the Court agreed.

52 In par 23 of his judgment Studdert J said, in part, that counsel for the appellant had conceded, in Studdert J’s view correctly, that “if the witness had limited himself to expressions of opinions as to the consistency of the language used being referable to a drug dealing, the appellant would have no complaint”. However, as Studdert J observed (at par 33 of his judgment) the witness had failed to distinguish “between an expression of opinion that something spoken was consistent with being a reference to drugs and asserting that something was a reference to drugs”.

53 In par 29 of his judgment Studdert J said:-

“29 It seems to me that in a situation such as occurred in the present case where a witness is expressing evidence that the speaker was talking about drugs, it is necessary that there be a manifest foundation for the evidence, namely:
(i) that it should be made apparent that the opinion expressed ‘is wholly or substantially based’ upon the expert training, study or experience of the witness: s 79 (of the Evidence Act):
(ii) that the reasoning process of the witness should be sufficiently exposed to enable an evaluation as to how the witness used his expertise in reaching his opinion”.

54 With regard to (ii), Studdert J referred (at par 31 of his judgment) to the frequently quoted passage in the judgment of Heydon JA (as his Honour then was) in Makita (Australia) Pty Limited v Sprowles (2001 52 NSWLR 705 at 744 (85).

55 In his judgment Studdert J discussed David & Gugea and Huynh and concluded that “the differing outcomes in David & Gugea and Huynh highlight the necessity for a close consideration of the circumstances of the particular case” (at par 42).

56 In par 42 of his judgment Studdert J concluded that the requirements for admissibility which he had earlier stated in par 29 of the judgment were not satisfied. His Honour said:-

“….I do not consider it has been shown that the opinions expressed by the witness were wholly or substantially based upon his specialised knowledge. Further, I do not consider that the reasoning process of the witness has been sufficiently exposed to establish how his conclusion was based upon his specialised knowledge, if such be the case…”.

57 Consequently, the evidence from Mr Smith was held not to be admissible as evidence of opinions based on specialised knowledge under s 79 of the Evidence Act.

58 Studdert J added that, even if the evidence had been admissible under s 79, the evidence should have been excluded under s 137 of the Evidence Act, because its probative value was outweighed by the danger of unfair prejudice. There was a real risk that the jury would be distracted from making its own assessment of the evidence of the conversations by the evidence of the police officer of his opinions that the conversations were about drugs and, as the reasoning process of the police officer in forming his opinions had not been properly disclosed, the jury were not in a position properly to assess the validity of the police officer’s opinions.

59 After this consideration of the authorities to which the Court was referred, I turn to a consideration of the circumstances of the present appeal.

60 As is apparent from the parts I have quoted, the evidence of Sgt Nguyen about the meanings of words and expressions used in the intercepted conversations, both in the statement of facts which was the principal evidence in the voir dire inquiry and in the evidence Sgt Nguyen gave in the trial, was in the form of opinions by Sgt Nguyen, not that words and expressions used in the conversations could be references to drugs or were consistent with being references to drugs, but that the words and expressions were in fact references to drugs.

61 Evidence in this form was held inadmissible by this Court in David & Gugea and Keller. Huynh can be distinguished from the present case in that there were not in the intercepted conversations in the present case explicit discussion of weights, measures and quantities and uncoded references to drug dealing and heroin.

62 The evidence by Sgt Nguyen was not admissible under s 79 of the Evidence Act as evidence of opinions wholly or substantially based on the witness’s specialised knowledge, because, as is clear, Sgt Nguyen’s opinions that words or expressions were in fact references to drugs were based, to a substantial extent, on matters other than his specialised knowledge, including information about the activities of the appellant which had been conveyed to him by police participating in the police investigation.

63 Further reasons why the evidence by Sgt Nguyen was not admissible as evidence of expert opinion were that not all of the facts on which Sgt Nguyen’s opinions were based were identified in his evidence and Sgt Nguyen failed to disclose the reasoning process by which he had arrived at his opinions. Makita v Sprowles; Keller v R.

64 To the limited extent to which the facts on which Sgt Nguyen’s opinions were based were identified and the reasoning process by which he had arrived at his opinions was disclosed, this served to confirm that his opinions were not wholly, or even substantially, based on his specialised knowledge.

65 Furthermore, the evidence in the form in which it was given, even if it had been admissible under s 79, should have been excluded under s 137 of the Evidence Act on the ground that its probative value was outweighed by the danger of unfair prejudice to the appellant, in that the evidence was liable to so influence a jury as to distract it from making its own assessment of the evidence of the intercepted conversations.

66 I would allow the first ground of appeal.

2. The trial judge erred in admitting opinion evidence from Sgt Luc Nguyen in the form of drug code tables

67 Earlier in this judgment I described the schedules or tables prepared by Sgt Nguyen which were admitted into evidence at the trial.

68 In Sch A which became exhibit 68 English words and expressions were set out as being literal English translations of Vietnamese words and expressions referring to particular quantities of heroin ranging from .2 of a gram to 1 kilogram. In Sch B which became exhibit 69 Vietnamese words and/or English translations of Vietnamese words were set out as being words referring to heroin and particular quantities of heroin. In Sch G which became exhibit 73 Vietnamese words were set out as being words used by Vietnamese drug dealers to refer to money or particular quantities of money.

69 In my opinion, all of these schedules would have been admissible, if tendered on the basis that they could be used by the jury for the limited purpose of showing that the words or expressions in the schedules were commonly used by Vietnamese drug dealers to refer to heroin or particular quantities of heroin or particular amounts of money and hence, when such a word or expression was used in one of the intercepted conversations, it could be a reference to heroin or a particular quantity of heroin or a particular amount of money.

70 However, no limitation was placed by the trial judge on the use to which the schedules could be put and the jury were not warned against using the schedules as a kind of dictionary, such that, whenever in a conversation a word or expression in one of the schedules was used, the word or expression was to be interpreted as in fact having the meaning assigned in the schedule.

71 I would allow the second ground of appeal.

3. The trial judge erred in failing to direct the jury regarding how they were to approach the opinion evidence of Sgt Luc Nguyen

72 It was conceded by counsel for the appellant that no relevant objection had been taken to the trial judge’s summing-up at the trial and hence r 4 of the Criminal Appeal Rules applied.

73 Given the seriously improper form of the evidence from Sgt Nguyen, it is difficult to see what directions could have been given by the trial judge which would have been sufficient to prevent unfair prejudice to the appellant.

74 In the summing-up the trial judge did tell the jury that it was a question of fact for them whether they accepted Sgt Nguyen’s evidence and in summarising the defence case the trial judge did summarise the submissions which had been put by defence counsel why Sgt Nguyen’s evidence should not be accepted. However, nowhere in the summing-up did the trial judge limit the use to which the jury could put Sgt Nguyen’s evidence, if they did accept that evidence, and the general tenor of the summing-up was that, if the jury accepted Sgt Nguyen’s evidence, they should return a verdict of guilty. For example, at p 40 of the transcript of the first day of the summing-up the trial judge told the jury:-

“The Crown case is that the evidence of the phone calls show beyond reasonable doubt that the accused was running a distribution business in heroin. The Crown case is that the expert evidence of Luc Nguyen that is of the code that is being used discloses that the accused is supplying and agreeing to supply heroin. That gives you the evidence of code in the context of the calls that they are talking of heroin and in the section of the text of the call what is the amount and that you would … accept his expert evidence as to the meaning of the code and accept his evidence as to the fact that they are discussing heroin and as to the quantities of heroin which are being discussed”.

75 The summing-up was also defective in that the jury were not directed to examine the basis on which Sgt Nguyen had formed each opinion and to determine whether the facts constituting the basis had been proved.

76 I would grant leave under r 4 to rely on this ground of appeal and I would allow the ground of appeal.

4. The trial judge erred in failing to direct or warn the jury regarding the caution that needed to be taken when evaluating the evidence given in relation to each separate count on the indictment

77 It was conceded by counsel for the appellant that no relevant objection was taken at the trial and hence r 4 applies.

78 It is true, of course, that two trials were being held, that is trials on each of the two counts in the indictment, and it was necessary that the jury understand that they had to consider each count separately and only with reference to the evidence relevant to that count.

79 In the summing-up the trial judge did deal separately and at length with the Crown case and then the defence case on each of the two counts. The trial judge was not asked by either counsel to say anything further than he had.

80 I would refuse leave under r 4 to rely on this ground.

Further matters

81 I have decided that the first three grounds of appeal should be allowed. It was not submitted by counsel for the Crown that, if any of these grounds of appeal were allowed and in particular the first ground, that it would be a proper case for the application of the proviso to s 6 of the Criminal Appeal Act. It is clearly correct that the inadmissible evidence given by Sgt Nguyen assumed such an importance at the trial that the proviso cannot be applied. Accordingly, the appeal against the conviction on the first count in the indictment must be allowed.

82 A question arose at the hearing of the appeal whether, in the event of the appeal being allowed, the verdict of guilty on the first count should be quashed absolutely or whether a new trial of the charge in the first count should be ordered.

83 In my opinion, a new trial should be ordered. There was some evidence against the appellant on the first count, namely the first three parts of the Crown case which I summarised near the beginning of this judgment, which was independent of any evidence from Sgt Nguyen.

84 Even without any evidence from a witness such as Sgt Nguyen, a jury could, in my opinion, take the view that it would be an affront to common sense to suppose that all of the words and expressions used in the intercepted conversations were being used as having their ordinary literal meanings. It was conceded at the trial which has taken place that many of the words and expressions did refer to drugs.

85 A witness such as Sgt Nguyen could properly give evidence of considerable cogency, that persons engaged in drug dealings often speak to each other in code and that certain particular words and expressions, which were used in the intercepted conversations, are commonly used by drug dealers to refer to drugs and that these words and expressions as used in the intercepted conversations could be references to drugs.

86 In my opinion, the appeal against conviction on the first count in the indictment should be allowed, the verdict of guilty should be quashed and a new trial should be ordered of the charge in the first count in the indictment.

87 The sentence imposed for the first offence was for a period of 12 years and a non-parole period of 8 years both commencing on 14 October 2003. The sentence imposed for the second offence was also for a period of 12 years and a non-parole period of 8 years commencing on 14 October 2005. Accordingly, at this time the appellant is serving both sentences and would not be released by reason of the quashing of the conviction on the first count.

88 It is desirable that, notwithstanding the absence of any appeal against sentence, some consequential orders be made following upon the quashing of the conviction on the first count. It may be that the Crown will not proceed with a new trial on this count. Even if a new trial does proceed the appellant may be acquitted. It is desirable that this Court adjust the sentences at this stage, whilst giving the parties an opportunity of making submissions, if they should wish to do so, on the form of any such order.

89 Accordingly I propose the following further orders:-

Quash the sentence imposed with respect to each count.
Re-sentence the appellant with respect to the second count to imprisonment for 12 years to commence on 14 October 2003 and expire on 13 October 2015. Non-parole period of 8 years to date from 14 October 2003 to 13 October 2011.
Stay these further orders for a period of 14 days from the date hereof or until further order.

90 HISLOP J: I agree with James J.

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