Nguyen v The Queen

[2015] NSWCCA 78

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Nguyen v R [2015] NSWCCA 78

Hearing dates:

8 April 2015

Decision date:

29 April 2015

Before:

Beazley P;
RA Hulme J;
Adamson J

Decision:

(1)   Grant leave to appeal.
(2)   Allow the appeal.
(3)   Quash the appellant’s conviction and enter a verdict of acquittal.
(4)   Order that the appellant be released forthwith.

Catchwords:

CRIMINAL LAW – Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) – appeal against conviction

CRIMINAL LAW – effect of failure to direct the jury as to an essential element of the offence – whether proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied – whether appellate court should enter alternative verdict pursuant to s 7(2) of the Criminal Appeal Act 1912

CRIMINAL LAW – whether verdict was unreasonable or could not be supported having regard to the evidence

EVIDENCE – probative value of lies of the accused

Legislation Cited:

Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92
Doggett v The Queen [2001] HCA 46; 208 CLR 343
Eade v The King (1924) 34 CLR 154
Edwards v R [1993] HCA 63; 178 CLR 193
Ka Chung Fung v R [2007] NSWCCA 250; 174 A Crim R 169
M v The Queen [1994] HCA 63; 181 CLR 487
Mehajer v R [2014] NSWCCA 167
MFA v R [2002] HCA 53; 213 CLR 606
Peacock v R [1911] HCA 66; 13 CLR 619
Pemble v R [1971] HCA 20; 124 CLR 107
R v Gulliford [2004] NSWCCA 338; 148 A Crim R 558
R v Heyde (1990) 20 NSWLR 234
R v Lau (1998) 105 A Crim R 167
R v Micalizzi [2004] NSWCCA 406
R v Moussa [2001] NSWCCA 427; 125 A Crim R 505
SKA v The Queen [2011] HCA 13; 243 CLR 400
Zoneff v The Queen [2000] HCA 28; 200 CLR 234

Category:

Principal judgment

Parties:

Thuy Le Nguyen (Appellant)
Regina (Respondent)

Representation:

Counsel:
T Gartelmann (Appellant)
H Roberts (Respondent)

Solicitors:
Criminal & Traffic Law (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2012/43727

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

04 October 2013

Before:

Lakatos DCJ

File Number(s):

2012/43727

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant appeals against her conviction of one count of supplying not less than the commercial quantity of a prohibited drug (heroin) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the Act), for which she was tried with the co-accused Hung Vu (Vu) and found guilty by a jury. Vu was the appellant’s former de facto husband. The drugs were found in a chip bag found on the front passenger side floor of a vehicle being driven by Vu in which the appellant was a passenger. The appellant denied that she was knowingly involved in any drug transaction, and denied that she had any knowledge of the presence of the drug in the chip bag.

The Crown case was one of deemed supply pursuant to s 29 of the Act. The Crown alleged that the appellant was engaged with Vu in a joint criminal enterprise to supply the drug. Its case was based on evidence of intercepted phone calls between Vu and a third person, Tan Phong Le, who was the subject of an Australian Crime Commission investigation and physical surveillance evidence of meetings between Le, Vu and the appellant. Additionally, the appellant’s involvement in the illegal enterprise was alleged to be evidenced by her presence in the days preceding her arrest when she and Vu twice met with Le, and from lies and inconsistencies in statements she made to the police following her arrest.

The appellant raised two grounds of appeal: first, that the trial judge erred in failing to direct the jury that the Crown was required to prove that the appellant knew a commercial quantity of the drug was involved in the offence; and secondly, that the verdict was unreasonable or could not be supported having regard to the evidence.

The Court, allowing the appeal, held:   

(1)        Effect of failure to give proper directions

(a) Knowledge that a commercial quantity of a particular drug is involved is an essential element of the offence under s 25(2) of the Act, and a failure to properly direct the jury as to an essential element of an offence is likely to amount to a miscarriage of justice, such that leave should be granted for the appellant to appeal on this point. [41]-[46].

R v Lau (1998) 105 A Crim R 167; R v Micalizzi [2004] NSWCCA 406; Ka Chung Fung v R [2007] NSWCCA 250; R v Moussa [2001] NSWCCA 427; 125 A Crim R 505; R v Gulliford [2004] NSWCCA 338; 148 A Crim R 558.

(b) The evidence was not sufficient to establish that, had they been properly directed, the appellant would inevitably have been convicted of the offence under s 25(2), as there was no evidence that implicated the appellant with knowledge of the quantity of the drugs. It followed that the proviso to s 6(1) of the Criminal Appeal Act ought not be applied. [47]-[48]

Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92

(c) For the Court to enter a substituted verdict, pursuant to s 7(2) of the Criminal Appeal Act, the jury’s satisfaction of the facts underlying the substituted verdict must be unaffected by the misdirection. However, it was not necessary to decide this question given the Court’s conclusion on the second ground of appeal. [51]-[52].

Mehajer v R [2014] NSWCCA 167

(2)        Whether the verdict was unreasonable or could not be supported having regard to the evidence

(a) The evidence that the appellant was involved in any drug transaction was not sufficient for it to be open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. It followed that the verdict was unreasonable or could not be supported having regard to the evidence. [53]-[71].

MFA v R [2002] HCA 53; 213 CLR 606; M v The Queen [1994] HCA 63; 181 CLR 487; SKA v The Queen [2011] HCA 13.

(b) To be probative of guilt, lies of the accused must be explicable only on the basis that the truth would be consistent only with commission of the offence charged. In this case, inconsistencies in the appellant’s evidence, were explicable on the basis of no more than that the appellant knew that Vu and Le were involved in an illegal drug transaction, and were therefore not probative of her own guilt. [69]-[70].

Edwards v R [1993] HCA 63; 178 CLR 193; Eade v The King (1924) 34 CLR 154; Zoneff v The Queen [2000] HCA 28; 200 CLR 234; Doggett v The Queen [2001] HCA 46; 208 CLR 343; R v Heyde (1990) 20 NSWLR 234.

Judgment

1. THE COURT: The appellant appeals against her conviction of one count of supply of not less than the commercial quantity of a prohibited drug (heroin) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the Act). A commercial quantity of heroin, for the purposes of the Act, is 250 g: Sch 1. The appellant was tried with the co-accused Hung Vu (Vu).

2. The Crown case at trial was that the appellant was engaged with Vu, her former de facto husband, in a joint criminal enterprise to supply the drug. The Crown case was one of deemed supply pursuant to s 29 of the Act whereby a person who has possession of not less than the trafficable quantity of a prohibited drug is deemed to have the drug for the purposes of supply, unless the person has the drug in possession otherwise than for supply: s 29(a). A trafficable quantity of heroin is 3 g: Sch 1 of the Act.

3. The appellant and Vu were apprehended by police at 1:50 pm on 9 February 2012 when the vehicle in which they were travelling was stopped by police. Vu had been driving the vehicle, which was said to belong to his sister, with whom they were staying. The appellant was in the front passenger seat.

4. The heroin in respect of which the appellant and Vu were charged was found on the floor of the front passenger’s side of the vehicle. The heroin had been packed in a plastic bag and placed inside a large heat sealed plastic bag before being placed in a bag commercially labelled “Mission Original Tortilla Strips White Corn” (the Mission Tortilla chip bag). The Mission Tortilla chip bag was folded over at the top but was not itself sealed. The arresting officer, Detective Campbell, in response to a question in cross-examination that the drugs could not be seen through the clear window of the Mission Tortilla chip bag said: “I think you probably could, yes.”

5. The heroin found in the vehicle weighed 352.2 g and had a purity of 47 per cent. Detective Sergeant Jonathon Woods gave evidence that the usual way in which heroin is imported into Australia is in a 350 g (or greater) “block” and, at the time of importation, is generally of approximately 75 per cent purity. The heroin in this case had been diluted, but was saleable at 47 per cent purity.

6. The principal issue at trial in the case against the appellant was whether the Crown could establish that she was knowingly involved in the drug transaction with Vu. There was no direct evidence of the state of the appellant’s knowledge and the Crown case relied upon the drawing of inferences both as to her knowledge that the Mission Tortilla chip bag contained heroin and as to the quantity of the drug involved.

7. The appellant denied having any knowledge of the presence of the drug in the Mission Tortilla chip bag. She said that the first time she became aware of the bag was when she and Vu were driving from Newtown to Punchbowl and the bag was knocked against her leg. She said she saw chips through the clear window of the bag. Vu also denied any knowledge of drugs being in the Mission Tortilla chip bag and contended that the arrangements upon which the Crown relied to establish the charge of supplying a prohibited drug against him were in fact arrangements he had been making with the person Tan Phong Le (Le) for the supply of “girls” (young women).

8. The appellant raised two grounds of appeal:

1. The trial judge erred in failing to direct the jury that the Crown was required to prove that the appellant knew a commercial quantity of the drug was involved in the offence.

2. The verdict was unreasonable or could not be supported having regard to the evidence.

Background facts

9. Vu participated in a number of telephone calls between 4 and 9 February with Le, in which, on the Crown case, Vu arranged to obtain the drugs from Le. Le at that time was the subject of an Australian Crime Commission investigation, including by way of physical surveillance and telephone interception. Relevantly, the police intercepted telephone calls between Le and Vu on 4 February, 7 February, 8 February and 9 February 2012. The calls were made on a mobile phone with a sim card that Vu had obtained on 26 January 2012 in a different name. He claimed this was to ensure his family did not know he was arranging for girls. The telephone calls were conducted in the Vietnamese language. There was no express reference to drugs in the telephone conversations. However, Detective Sergeant Woods gave evidence that various code words were used such as “girls”, “photo” and “virgin”, which were words known in the drug trade as code for drugs.

10. There was physical surveillance of Le on 7 and 9 February. On each occasion, Vu and the appellant were observed in Le’s company at The Star casino. On 9 February, Vu and the appellant were also observed at Le’s convenience store at Newtown. Police followed Vu and the appellant to Punchbowl, where they were arrested. The Crown alleged that the drugs were obtained from Le at the meeting at the convenience store.

11. It is necessary to consider the events from 4 February 2012 to 9 February 2012 in closer detail.

4 February 2012

12. The appellant and Vu had three children. The appellant lived in Canberra with their son. Vu lived in Melbourne with their two daughters. The appellant had another daughter who also lived in Melbourne. The appellant had gone to Melbourne to visit her daughters the weekend before her arrest. She stayed with her eldest daughter and with a boyfriend whom she occasionally dated.

13. There were two telephone calls on 4 February between Vu and Le that were subject of interception. The conversations were conducted in Vietnamese, save for the occasional use of an English word. (English words used in the telephone calls were bolded in the official translation in evidence. That bolding is maintained below in the extracted portions.)

14. In the first telephone call, made by Vu to Le shortly after 11:12 am, the following conversation occurred:

“[Le]:   Hello

[Vu]:   Hello is it you bro?

[Le]:   Yeah

[Vu]:   Well that issue how is it going bro?

…

[Le]:   Yeah um by midday er this afternoon then I er I my friend um will set to see me until later this afternoon so please be assured when er I will buzz you

…

[Vu]:   They urge me like hell you know?

[Le]:   Yeah yeah I know already I know already I understand I understand I understand yeah”.

15. Detective Sergeant Woods said that the phrase “urge me like hell you know” was consistent with Vu indicating that he was experiencing pressure from buyers regarding his capacity to supply the drugs.

16. The second phone call was made by Vu to Le shortly before 7:57 pm. The conversation was as follows:

“[Le]:   What’s up?

[Vu]:   The other brother has just phoned me

[Le]:   Yeah I know already I know already so now um now that that that chick of NGOC (F) she er she arrives at this time so please come over to do it er to try it come over to visit her

…

[Le]:   … so are you coming over?

[Vu]:   Um er would it not be er er would it be him who is going to take the chick’s photo down here to my friend bro?

[Le]:   Oh no er motherfucker that chick er she she she is still virgin you know?

…

[Le]:   … looking at her she looks quite good …

[Vu]:   Does she?

[Le]:   Yeah I know already there’s no problem at all

[Vu]:   If so there’s no need to bother

[Le]:   Yeah

[Vu]:   If so say so then I would trust you bro there’s nothing further to keep backing away

[Le]:   Yeah

[Vu]:   So just fucking send it down to me and that’s all bro!

…

[Le]:   So please let me do like this by tomorrow midday … I will … meet them er then I tell them … to go … down there by themselves … to see you alright?

[Vu]:   Yeah yeah

[Le]:   Yeah okay tomorrow”

17. Detective Sergeant Woods gave evidence that the words “girl”, “photo” and “virgin” were code words relating to drugs and to heroin specifically. He said that the import of the conversation included that, when Le vouched for the purity of the drugs, Vu said he trusted Le.

6 February

18. The appellant met Vu on 6 February 2012 at her eldest daughter’s home in Melbourne. They talked about their children. The appellant suggested to Vu that he visit their son in Canberra. The appellant also asked her boyfriend to come with her to Sydney and she, her boyfriend “Tim”, and Vu flew to Sydney and stayed at The Star casino on the night of 6 February. She said that she came to Sydney as it was Vietnamese New Year and she wanted to take her boyfriend to the Ballroom in the Cabra-Vale Club. She said she did not know “Tim’s” full name, although she had known him a long time. She also said she would not be able to find out his full name, as “he is a trusting person, he don’t take any advantage of me”.

7 February 2012

19. In telephone calls on 7 February, Vu and Le arranged to meet at The Star casino. They met at 11:49 am. There was video and police surveillance of them during their meeting. Vu and Le went to the gaming room and sat in the designated smoking corner of the room. At 12:05 pm, Vu left Le for a short period and returned in the company of another man who sat with them. At 12:16 pm, Vu left Le and the other man and returned with the appellant, who had been playing a gaming machine.

20. The appellant was in the company of Vu, Le and the other man for a total of seven minutes. At 12:19 pm, she was observed to remove a mobile phone from her handbag and hold it in her left hand. She was also seen with a mobile phone in her right hand. She was observed to look at that phone and then hand it to Le. While looking at the mobile phone in her right hand, she was observed to appear to start using the keypad of the phone in her left hand. There was no evidence relating to the second phone other than that she handed it to Le. For example, there was no evidence of who owned the phone, of whether it was later located by the police as part of the investigation or whether it had been the subject of any intercepts.

21. The group left the gaming room at 12:22 pm. Le left the casino and Vu, the appellant and the third person went towards the food hall.

22. The appellant’s version of this meeting was that she and her boyfriend were in the smoking area of The Star casino when Vu met a man she later learned was Le. She said, however, that she was not introduced to Le at the time and that Vu did not explain to her why Le was there. She said that she was not paying attention to any conversation between Vu and Le, as she was playing with her phone. She did not recall handing a phone to Le.

23. The appellant’s boyfriend returned to Melbourne on 7 February. The appellant remained with Vu and travelled to his sister’s home in Punchbowl where they stayed that night. It should be noted that the identification of this person as Vu’s sister did not mean there was a filial relationship between Vu and her. The identification of “sister” appears to have been a colloquial form of expression.

8 February 2012

24. Two telephone calls between Vu and Le were intercepted on 8 February. The first was at 3:15 pm, when Vu telephoned Le, as follows:

“[Vu]   … do we know what time it is for tomorrow yet?” (White 170; Resp subs (10)).

[Le]: … not yet I’ll ring you if anything … relax, don’t be too anxious … I’m seeing them now … I’ll ring you to let you know.”

25. Sometime after that conversation, the appellant and Vu travelled to Canberra to see their son. They arrived at about 9 pm. At about 10:30 pm, Vu received a telephone call from Le asking whether Vu could “come over … now”. Vu replied:

“I found [not transcribed] so I checked with you, nothing was happening, therefore I went back to CANBERRA to see my son. I won’t be able to come back up until tomorrow morning.” (White 171)

26. Le responded:

“I already said to you not to you-know-what at all [not transcribed] alright then. So tomorrow morning, alright?”

27. Vu said that he would “be back early tomorrow morning”.

28. The appellant said in her evidence that she drove to Canberra with Vu as she intended “to help him to drive back to see my son and then I go back here and then I’m off with my friend and he do what he [answer not completed]”.

9 February 2012

29. The appellant and Vu arrived back in Sydney at about 11:15 am. Vu telephoned Le and told him he had arrived back and had “set time” with “them”. Le said, “just ring me up whenever you finish”. Vu responded, saying, “No now I need it … beforehand”.

30. They arranged to meet in half an hour. It was apparent from the next telephone call, which occurred about 12:11 pm, that Vu had understood the meeting place to be The Star casino, whereas Le had intended that Vu come to his convenience store in Newtown. When the misunderstanding was realised, Le went to The Star and Vu followed him back to the convenience store in Newtown. The appellant was with Vu at The Star and at all times thereafter until her arrest at Punchbowl.

31. Surveillance video footage was taken of Vu, Le and the appellant at the convenience store from 12:54 pm, sitting at a table outside the shop. Le was observed going inside the shop and returning with a Mission Tortilla chip bag which he placed on the table. As they were leaving, Vu picked up the bag and carried it to his vehicle. As they left, Le walked for a little distance with Vu. The appellant followed, initially at a distance, but caught up with him by the time they crossed the road and got into the vehicle. The appellant stated in her ERISP that she had a cup of coffee and a cigarette at the convenience store but neither she nor Vu spoke to anyone (Q/A 124, 128, 129).

29. Police kept Vu and the appellant under surveillance until they reached Vu’s sister’s house in Punchbowl.

30. When stopped at Punchbowl, the appellant was asked a number of questions by Police, including about when she had seen the Mission Tortilla chip bag. She said:

“[Appellant]   When I’m in the car.

[Officer]   Okay and when was that, where had you been?

[Appellant]   When had I been?

[Officer]   Yeah.

[Appellant]   I drive around, go have coffee.

[Officer]   Where did you have coffee ?

[Appellant]   Star.”

The appellant did not mention the Le convenience store.

34. She said in her ERISP that a man whom she did not know came and spoke to them at the Casino and they went down to the car park on the same escalator. She said she didn’t know if it was a meeting as she “just follow” Vu (White 228). She also said in her ERISP that they went “home”. When asked whether they stopped on the way home, she said they went for coffee but that she did not know where, as “I’ve never been up here and it’s all new to me”.

35. In her ERISP, the appellant said that she noticed the Mission Tortilla chip bag in the car and saw chips in it through the cellophane window but did not know where the bag came from (Q/A 144, 148, 150). She said she did not know there were drugs in the Mission Tortilla chip bag until she was told by police. She said that when the bag hit her leg, she assumed it was “just chips” as she saw the writing on the bag and chips through the window of the bag (Q/A 145, 171-2, 182). She said that when they left the convenience store, Vu was not carrying anything, and that she was sure about that (Q/A 187-189).

36. In her evidence, the appellant said that she had come back to Sydney “to help [Vu] to drive the car” (White 469). When asked what she did when she got to The Star casino, she said, “I think I have coffee at the Star”. She said she could not remember if she met anybody. Her evidence in chief continued:

“Q. Do you remember you gave an interview to the police?

A. WITNESS: Yes.

Q. You told the police in the interview --

A. WITNESS: Yes.

Q. -- that you met someone and he was going down the escalators?

A. WITNESS: Yes.

Q. Was that at the Star City?

A. WITNESS: Yes.

Q. Can you remember how was it you met this person?

A. WITNESS: I met him on the seventh.

…

Q. How was it you met him on the ninth, this person at the escalators?

A. WITNESS: I just saw the back of him so.

Q. Was he one of the persons you met with a group of people on the seventh?

A. WITNESS: Yes.

…

Q. Did you again see this person later that day?

A. WITNESS: Yes.

Q. You told the police in the record of interview that you went and had a coffee?

A. WITNESS: Yes.

…

Q. Did Mr Vu and you both go into the store together or did Mr Vu go in and you then followed him?

A. WITNESS: I follow.

Q. When you had the cup of coffee what were you doing?

A. WITNESS: Playing with my phone.

…

Q. During the time that you were there did you listen to the conversation or any conversation that Mr Vu was having with this man?

A. WITNESS: Yes.

Q. Do you remember what was being said?

A. WITNESS: I was paying attention.

Q. You wasn’t paying attention?

A. WITNESS: Yes.

Q. What were you doing?

A. WITNESS: Playing with my phone.

…

Q. As you were walking across the road did you notice anything in Mr Vu’s hand?

A. WITNESS: No.

Q. As you got into the car did you notice anything in the car in the foot well?

A. WITNESS: No.

…

Q. Did you see Mr Vu carrying anything?

A. WITNESS: No.

…

Q. And you said you were asked [by police] when you went to the café did Mr Vu speak to any other people, and you said no, you know that’s no true?

A. WITNESS: Yes.

Q. Why did you say that to the police.

A. WITNESS: I was scared that time.

…

Q. In your record of interview, just one other question, you were asked by the police did you ever see the man Mr Le. You said you never met him before.

A. WITNESS: Yes.

Q. You now know that’s not true?

A. WITNESS: Yes.

…

Q. Why did you tell the police that?

A. WITNESS: Because I only met him in five minutes so it doesn’t occur to me.”

37. The appellant denied she had come to Sydney with Vu to obtain drugs or had at any time agreed to be involved with him in obtaining drugs. Her cross-examination included the following evidence as to what occurred at the convenience store:

“Q. And did you have a conversation with Mr Le or Mr Vu while you were there?

A. WITNESS: No.

Q. Did they speak to each other?

A. WITNESS: Yes.

Q. Can you recall what they said?

A. WITNESS: I didn’t pay attention.

Q. Right what were you doing?

A. WITNESS: Playing with my phone.

…

Q. Did you speak to Mr Le at all?

A. WITNESS: No.

…

Q. Can you recall anything that was said while you were seated at the convenience store?

A. WITNESS: I wasn’t paying any attention.

Q. Did you notice Mr Le get up, go inside and then come back with a bag of chips?

A. WITNESS: I don’t pay attention to that either.

Q. Did you see a bag of chips on the table at any stage?

A. WITNESS: I don’t pay attention at all.

Q. Did you hear Mr Le suggest that you might want to have a chip with your coffee?

A. WITNESS: No.

Q. When you were leaving, you followed a little while after Mr Vu and Mr Le left, is that right?

A. WITNESS: Yes.

Q. When you saw them in front of you, did you see Mr Vu with a bag of chips?

A. WITNESS: No.

Q. Did you see him at any stage with a bag of chips?

A. WITNESS: I can’t remember.

Q. And when did you first notice that there was a bag of chips in the car?

A. WITNESS: When they making a turn.

…

Q. And how did you notice it?

A. WITNESS: It rub against my leg.

…

Q. Why were you scared [when the police stopped the vehicle at Punchbowl]?

A. WITNESS: Suddenly the police come up and show me the bag and say ‘There’s drug in there’ but I don’t know anything about that.

Q. Well why should you be scared, you had nothing to do with it?

A. WITNESS: I never been in trouble before so --

Q. So why didn’t you tell the police about having stopped at Mr Le’s convenience store?

A. WITNESS: At that time it doesn’t recall.”

The appellant denied she was part of the scheme for Vu to obtain drugs from Le.

38. Vu, in his ERISP, said that Le had offered them some chips at the convenience store but they didn’t eat them. He said he took the bag with him when they left. He said to the appellant, “[w]ho going to eat these chips?”. He said he then threw the bag into the car “on her side” as he was driving (Q/A 128, 135, 137). He said that he did not look inside the bag. In response to the question about the bag being “heavier than a normal paper bag with some corn chips in it”, he responded, “I, honestly I don’t give, know about that” (Q/A 143). In the ERISP, Vu explained the appellant’s presence with him on the basis that they were “try[ing] to be a little bit like, closer” (Q/A 153).

39. In his evidence at trial, Vu said that his telephone calls with Le related to arranging girls for the following weekend. In his cross-examination, Vu denied that the appellant was involved in his conversation with Le at the convenience store and said she was playing with her phone. He said that Le put a bag of chips on the table and said:

“…okay I know you got hungry but sorry I can’t go out for lunch with you, leave for next time and just take a bag of chip with you in the meantime if you hungry in the car you can have something to eat.”

Vu said he replied:

“First I say ‘no I don’t eat chip’ and just because he keep telling me to take it, by respect the oldest I take it with me.”

The Crown case at trial

40. The Crown case against the appellant was based upon her activities in travelling to Melbourne, where Vu resided, and then remaining in his company from 6 February 2012 up until the time they were arrested on 9 February 2012, and on lies she told the police. There was no evidence of telephone calls between the appellant and Le or between the appellant and Vu, nor was she mentioned in any of the telephone calls between Vu and Le.

First ground of appeal: failing to direct the jury that the Crown was required to prove that the appellant knew a commercial quantity was involved in the offence

41. Knowledge that a commercial quantity of a particular drug is involved is an essential element of the offence in question: R v Lau (1998) 105 A Crim R 167 at [174]; R v Micalizzi [2004] NSWCCA 406 at [17], [42]. The Crown accepted that the trial judge erred in failing to direct the jury of this: Ka Chung Fung v R [2007] NSWCCA 250 at [42].

42. The appellant’s counsel at trial did not seek a direction, redirection or further direction on this point. Accordingly, the Criminal Appeal Rules (NSW), r 4 applies and leave is required to raise this ground of appeal. A party seeking leave needs to establish that there may have been a miscarriage of justice arising from the error at trial: R v Moussa [2001] NSWCCA 427; 125 A Crim R 505 at [63] per Howie J (Giles JA and Carruthers AJ agreeing).

43. The appellant submitted that leave to appeal on this ground ought to be granted as a failure to give the jury a direction in respect of an essential element of the offence will generally give rise to a miscarriage of justice. The Crown did not oppose the grant of leave.

44. In Fung, Latham J (Spigelman CJ and Kirby J agreeing) stated, at [48], that where a trial judge:

“… [fails] to direct [a jury] correctly or at all in relation to the elements of an offence … an applicant will generally be able to persuade the Court that a miscarriage of justice may have occurred…: see R v Gulliford [[2004] NSWCCA 338; 148 A Crim R 558 at 579].”

45. In Gulliford, Wood CJ at CL (Spigelman CJ agreeing on this point, Howie J agreeing) stated, at [113], “the giving of correct directions on elements of an offence are important to a fair trial”. Leave was thus granted pursuant to r 4 to argue a ground of appeal relating to a failure to direct the jury of the essential elements of the offence charged.

46. In the present case, the failure to direct the jury that knowledge of the quantity of the drug was an essential element of the offence was a serious omission. For that reason, leave to appeal should be given to raise this ground of appeal. Although the Crown did not oppose the grant of leave to raise this ground of appeal, it submitted that a misdirection as to an element of an offence does not automatically give rise to a substantial miscarriage of justice for the purposes of the proviso pursuant to the Criminal Appeal Act 1912 (NSW), s 6(1) and that it was open to the Court to apply the provisions of the Criminal Appeal Act, s 7(2).

47. In Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92 at [31], the plurality observed that the proviso to s 6(1) of the Criminal Appeal Act ought seldom to be applied where the jury had not been sufficiently directed of the need to be satisfied to the requisite standard of an element of the offence with which the accused person is charged. However, the Crown argued that in the present case, the appellant would inevitably have been convicted on the same evidence at trial if the jury had been properly directed that the appellant knew that the quantity of the drug involved was of greater than a commercial quantity. The Crown relied, for the purposes of proving knowledge that a commercial quantity of the drug was involved, upon the telephone conversations between Vu and Le on 4 February, as enabling the jury to infer that the discussions concerning the purity of the drug and the provision of a sample established that Vu was of the knowledge or belief that the transaction concerned a significant amount of heroin. The Crown relied upon the appellant being engaged in a joint criminal enterprise with Vu to supply a significant quantity of heroin.

48. We do not agree that the evidence was sufficient to establish beyond reasonable doubt that the appellant had knowledge of the quantity of drug involved. Even if the evidence was sufficient to implicate the appellant with knowledge that a delivery of drugs was being or had been organised, there was no evidence that implicated her with knowledge of the quantity of drugs. She was not party to any of the telephone calls between Vu and Le. There was no evidence of any other telephone calls that may have implicated her in the offence. She was not overheard to say anything to Vu or Le in relation to the drugs. She did not handle the Mission Tortilla chip bag. There was nothing about the bag itself sufficient to indicate that the drug was of the prescribed commercial quantity of 250 g. The Crown’s submission in this regard should therefore be rejected.

49. The Crown submitted, alternatively, that if the Court was not satisfied that the appellant would have been convicted of the charge of supply of not less than a commercial quantity of a prohibited drug on the evidence presented at trial, it was nonetheless open to the court to enter a substituted verdict against the appellant pursuant to the Criminal Appeal Act, s 7(2). That section provides:

“Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.”

50. In Mehajer v R [2014] NSWCCA 167 Bathurst CJ noted that the power conferred on the Court by s 7(2) was to be exercised “with great caution”. In his Honour’s view, expressed at [138], the power conferred by s 7(2) was most likely to be exercised where the offence was wholly within the ultimate facts on which the accused person was convicted. His Honour added that:

“Where the ground for setting aside a conviction is a misdirection the section can only apply where the Court holds that the jury must have been satisfied as to facts underlying the conviction which are unaffected by the misdirection and which constitute the other offence.”

51. The Crown submitted that in this case the substitute verdict would be an offence of supplying a prohibited drug contrary to s 25(1) of the Act. The elements of that offence were, on the Crown’s submission, wholly encompassed within the elements of the offence under s 25(2). Further, the alternative offence under s 25(1) was open on the indictment as it is a statutory alternative to an offence under s 25(2): see s 25(3). The Crown submitted that the jury’s verdict of guilty of an offence contrary to s 25(2) of the Act meant that the jury had found the elements of the alternative charge established at trial and were satisfied of facts that constituted the alternative offence unaffected by the misdirection.

52. There may have been merit in the Crown case were it not for the conclusion to which we have come in respect of ground 2. For the reasons which appear hereunder, we are of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.

Ground 2: the verdict is unreasonable or cannot be supported having regard to the evidence

53. The test to be applied in determining whether the verdict is unreasonable or cannot be supported having regard to the evidence is well-established. Subject to replacing the words “unsafe or unsatisfactory” with the statutory formulation in the Criminal Appeal Act, s 6(1), of “unreasonable, or cannot be supported, having regard to the evidence”: see MFA v R [2002] HCA 53; 213 CLR 606, at [25], the principle, as stated in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, is as follows:

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.” (citation omitted)

54. In SKA v The Queen [2011] HCA 13; 243 CLR 400 the High Court stated:

“[12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to ‘unsafe or unsatisfactory’ in M is to be taken as ‘equivalent to the statutory formula referring to the impugned verdict as ‘unreasonable’ or such as ‘cannot be supported, having regard to the evidence’.’

[13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:

‘In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.’” (citation omitted)

55. The appellant submitted that the case against her was wholly circumstantial. Those circumstances, in summary, were as follows:

“a.   The content of the intercepted phone calls between Le and Vu on 4, 7, 8 and 9 February 2012;

b.   The fact that the appellant accompanied Vu over the period preceding the transaction and until their arrest;

c.   The presence and conduct of the appellant during the meeting at the Star on 7 February 2012;

d.   The presence and conduct of the appellant at the convenience store when the drugs were collected on 9 February 2012;

e.   The location of the drugs in relation to the appellant at the time the car was stopped and searched; and

f.   The statements of the appellant in conversation with police at the time the car was stopped and searched and in interview regarding her movements.” (Apps subs (36)

56. The appellant submitted that these factors, taken singly or together, were such that there was a reasonable possibility that she was not a party to a joint criminal enterprise to possess the drugs for the purpose of supply.

57. One factor to which the appellant points which we consider to be of particular significance in respect of the circumstantial case against her, was that not only was there no reference to her in any of the telephone calls, in those conversations Vu always spoke in the first person singular. Nor, as has been indicated, was there any evidence of the appellant being engaged in any telephone conversations with Le or Vu at all.

58. The appellant also explained why it was that she was in Vu’s company in the days preceding the arrest. However, leaving aside her explanation, there was no evidence that demonstrated that the appellant was involved with Vu or otherwise implicated in his dealings with Le in respect of the drugs. The fact that the appellant was only with Vu and Le for about seven minutes of their half hour plus meeting on 7 February pointed to her lack of involvement or participation in any arrangements relating to the drugs, rather than implicating her in any such arrangements.

59. There was no evidence as to what was said at that meeting. Unlike the position with Vu, there was no evidence that she had been in contact with any person to whom the drugs were to be provided. The appellant’s interaction with Le in handing him a phone was of little moment. The surveillance officer’s attention was distracted momentarily whilst observing the group and he did not see where the phone came from or how it came to be in the appellant’s possession. For all that is known, it could have been handed to the appellant by Vu or by Le to show her something on it.

60. The appellant also submitted that there was nothing in the surveillance evidence of her, Vu and Le at the convenience store that demonstrated that she was involved in obtaining the drugs. She pointed out that as they left the video store, Vu and Le were a little way in front of her, suggesting that she was not involved in their dealings. As was demonstrated on the video evidence, by the time she caught up with Vu, Le had moved off in another direction. No fingerprints or DNA of hers was found on the Mission Tortilla chip bag, notwithstanding that the bag was found in the footwell of the vehicle where she was seated as a passenger. This might be seen as an indication that she had no interest in the bag or involvement with the drugs in it, even if she knew or suspected what its contents were.

56. The Crown submitted, however, that on the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt, in accordance with the principles discussed above. In particular, it submitted the Court would be satisfied on the evidence that it was open to the jury, properly instructed, to be satisfied beyond reasonable doubt of all elements of the offence charged including the element of knowledge that the heroin was more than 250 g.

57. The Crown submitted that the telephone call between Vu and Le on 4 February was capable of establishing that Vu was negotiating with Le to obtain a significant quantity of heroin. The Crown then argued that the appellant’s involvement in a joint criminal enterprise with Vu in obtaining a significant quantity of heroin was supported by their personal arrangements in the days prior to 9 February.

58. In this regard, the Crown argued that the appellant, who was not shown to be a person of great financial means, travelled from Canberra to Melbourne to Sydney to Canberra and back to Sydney within five days. The Crown contended that the brevity of the visit to Canberra on 8 February followed by the early morning departure on 9 February, demonstrated some urgency and purpose in returning to Sydney. Once in Sydney, the appellant and Vu met immediately with Le whom they had already met on 7 February.

59. However, the following responses may be made to those arguments. First, the appellant’s evidence was that her boyfriend Tim paid for her airfare and Vu said that his oldest daughter paid for his trip on her Visa card. Secondly, the trip to Canberra was made in a car owned by Vu’s sister. There was no suggestion of any cost to the appellant. Thirdly, there were plausible reasons that explained the appellant’s presence in Melbourne, the trip to Sydney and the visit to Canberra. There was also a plausible reason why the appellant travelled back to Sydney from Canberra. The appellant said that she had travelled to Canberra with Vu to help with the driving and that she had done the same on the return. She said that she had returned to Sydney to attend Vietnamese New Year celebrations.

60. The Crown further submitted that, from the time she was apprehended, the appellant made significant efforts to distance herself from Le, which was inconsistent with her innocent explanations for her movements. In particular, the Crown contended that the appellant lied when the police first confronted her at Punchbowl, when she said that she had had coffee that morning at The Star. This, of course, was false. She had had coffee at the convenience store.

61. The appellant contended that the capacity of this wrong statement to show that she had deliberately lied because she feared implicating herself was doubtful as, in her ERISP, she correctly stated that she had had a coffee at a café after having left The Star casino (Apps subs (42)). The Crown submitted that this ‘correction’ did not neutralise her false statement to the police because the appellant also stated in her ERISP that neither she nor Vu spoke to anyone else at the cafe at the convenience store. This in turn was false. (Erisp Q and A 128-9).

62. The Crown also relied upon further ‘misstatements’ made by the appellant where, in her ERISP, she said that Vu had met a friend at The Star casino on the morning of 9 February, possibly by coincidence. She said that she was not introduced to the friend, nor had she previously known him. In her oral evidence at trial, the appellant explained that in giving those answers, she had not thought of having met Le on 7 February, because as she said, “I only met him in five minutes so it didn’t occur to me”.

63. The Crown submitted that the appellant’s continued efforts to distance herself from Le lent weight to its contention that the appellant’s original lie to the police on 9 February was deliberate and of significance.

64. A lie is not necessarily evidence of guilt. In Edwards v R [1993] HCA 63; 178 CLR 193 at 209, Deane, Dawson and Gaudron JJ stated, at 209:

“… not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that ‘if he tells the truth, the truth will convict him’.” (citations omitted)

70. See also Eade v The King (1924) 34 CLR 154 at 158 per Knox CJ, Gavan Duffy and Starke JJ; Zoneff v The Queen [2000] HCA 28; 200 CLR 234 at [57]-[58] per Kirby J; Doggett v The Queen [2001] HCA 46; 208 CLR 343 at [69] per McHugh J; and R v Heyde (1990) 20 NSWLR 234 at 242-244 per Clarke JA.

71. The appellant gave explanations as to why she had not been completely truthful when she spoke to police at the scene of her arrest and in her ERISP. It was a matter for the jury whether to accept those explanations. Whilst the appellant’s false statements may have indicated that she was attempting to distance herself from the drug transaction, they were also consistent with her having some understanding that Vu and Le were involved in an unlawful activity involving drugs. However, of itself, it did not establish that the appellant and Vu were jointly in possession of the drugs or that she had any knowledge of the quantity of drugs involved.

72. Having read all the evidence and watched the video evidence we each find ourselves having a reasonable doubt as to the guilt of the appellant of the offence charged. Although her presence with Vu during this period certainly raises a suspicion as to what she was doing, and the circumstances in which the drug was delivered to Vu may mean that there was a reasonably available inference that the appellant knew that there was some illegal drug activity occurring, we have a reasonable doubt that the appellant was guilty of the offence charged.

73. There is another matter of importance which must not be left unstated. Suspicion or perhaps awareness by the appellant of the involvement of Vu and Le in a drug transaction, but without any personal interest let alone participation, was a viable explanation for the appellant's conduct, particularly her false statements. However, this was not ventilated before the jury by anyone. The only asserted hypotheses advanced by the parties were knowing involvement or complete ignorance of the activities of Vu and Le.

74. Regardless of how a trial is conducted by an accused person, the trial judge “must be astute to secure for the accused a fair trial according to law”: Pemble v The Queen [1971] HCA 20; 124 CLR 107 at 116 per Barwick CJ. The fundamental principle that governs a criminal trial is that to convict, a jury must be satisfied that the facts were inconsistent with any rational conclusion other than that the accused was guilty. In other words, the circumstances must be “inconsistent with any reasonable hypothesis other than the guilt of the accused”: Peacock v The King [1911] HCA 66; 13 CLR 619 at 634. In Pemble, at 117-8 Barwick CJ added:

Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.

75. This is not to say that in every circumstantial evidence case there is a requirement for a trial judge to search for any rational hypothesis inconsistent with guilt that may not have been raised by counsel. Whether there is a need for a trial judge to draw to the jury's attention the possible existence of any such hypothesis very much depends upon the facts and circumstances of the case at hand: see the discussion in R v Sung Eun Park [2003] NSWCCA 203 at [43]ff per Shaw J, Ipp JA and Buddin J agreeing.

76. This point was not one relied upon by the appellant and so there is no need to say more about it.

77. Having reached the conclusion that it was not open to the jury to be satisfied beyond reasonable doubt as to the appellant's guilt, the Court makes the following orders:

1. Grant leave to appeal.

2. Allow the appeal

3. Quash the appellant’s conviction and enter a verdict of acquittal.

4. Order that the appellant be released forthwith.

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Amendments

04 May 2015 - Formatting realigned in Headnote

Decision last updated: 04 May 2015