Nguyen v The Queen - [2001] WASCA 137

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: NGUYEN -v- THE QUEEN [2001] WASCA 137

CORAM: SCOTT J

HEARD: 20 APRIL 2001

DELIVERED : 26 APRIL 2001

FILE NO/S: CCA 53 of 2001

BETWEEN: HUY DUC NGUYEN
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Bail - Application for bail pending hearing of appeal - Exceptional circumstances required

Legislation:

Bail Act 1982, Part C cl4 of Schedule 1

Result:

Application dismissed

Representation:

Counsel:

Applicant: Mr R A Mazza
Respondent: Mr M G A Plummer

Solicitors:

Applicant: Alex Palumbo
Respondent: Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bond v The Queen, unreported; CCA SCt of WA; Library No 920322; 12 June 1992
Bulejcik (1996) 86 A Crim R 467
Caratti v R [1999] WASCA 91
Chamberlain v R (1983) 153 CLR 514
Marotta v The Queen [1999] HCA 4
White v The Queen, unreported; CCA SCt of WA; Library No 940327; 6 July 1994

Case(s) also cited:

Domican v R (1991-2) 173 CLR 555
R v Turnbull [1977] 1 QB 224

SCOTT J: In this matter the applicant has applied for bail pending appeal. The applicant was convicted following his trial in the District Court of two offences. The indictment alleged:
1That between 16 and 18 November 1999 at Perth and elsewhere, he was knowingly concerned in the importation into Australia of a prohibited import to which s 233B of the Customs Act 1901 applied, namely, narcotic goods consisting of a quantity of heroin being not less than the trafficable quantity applicable to that substance contrary to paragraph 233B(a)(d) of the said Act.
2And further and in the alternative, that on 24 November 1999 at Perth in the said State, he did without reasonable excuse attempt to obtain possession of a prohibited import to which s 233B of the Customs Act 1901 applied, namely, narcotic goods consisting of a quantity of heroin being not less than the trafficable quantity applicable to that substance, which had been imported into Australia in contravention of paragraph 233B(1)(c) of the said Act.
The applicant has appealed to the Court of Criminal Appeal in relation to each of those convictions and I am told by counsel that his appeal is listed for hearing in the July sessions of that court.
It is common ground that because the applicant has been convicted of an offence, cl 4 of Schedule 1 of the Bail Act 1982 requires the applicant to demonstrate "exceptional reasons" why he should not be kept in custody.
As to the appropriate test to be applied in these circumstances, there is some dispute in this Court as to the appropriate principles to apply. In Bond v The Queen, unreported; CCA SCt of WA; Library No 920322; 12 June 1992, Franklyn J said at 8:
"But in any event I am not persuaded that the case is of such strength as to demonstrate such a possibility of success as to amount to an exceptional reason for granting bail."
In Caratti v R [1999] WASCA 91, Miller J considered that decision and others and said at 6:
"However, for present purposes, the test which I will apply is whether there are strongly arguable grounds of appeal, which have strong prospects of success."
In White v The Queen, unreported; CCA SCt of WA; Library No 940327; 6 July 1994, I came to the view that the preferred test is that enunciated by Franklyn J in Bond's case, as against the test in Madden v R, unreported; CCA SCt of WA; Library No 930292; 20 May 1993, where Walsh J said at 6:
"I must also have regard to whether I feel that it has been established that he has a reasonably arguable case that the appeal will succeed."
In my view, the appropriate test is that applied by Franklyn J in Bond's case because otherwise the jury's verdict would have been vested with "a provisional quality as though it should take effect only after the channels of appeal have been exhausted" see Brennan J in Chamberlain v R (1983) 153 CLR 514 at 519 and the contrary view of Callinan J in Marotta v The Queen [1999] HCA 4.
Turning from those tests to the facts of the case, the Crown's case was that the applicant was involved in the importation of heroin into Australia. The Crown's case was that the applicant had been in Hong Kong at a time at which a parcel was sent to an address in Western Australia. That parcel was posted from Hong Kong to an address that the applicant frequented in this State. The applicant had been in Hong Kong between 4 and 18 November 1999 and the package was sent to Australia on 16 November 1999. It was not disputed that the applicant was in Hong Kong at that time. When the parcel was delivered to the address in Australia, it was delivered by an undercover police officer and was accepted by the applicant. There was a minor error in the address on the parcel, but that is not of any particular relevance in relation to these proceedings. The applicant having taken possession of the parcel put it on a cupboard in the kitchen. Sometime after, the applicant was arrested at the house.
As part of the case against the applicant, the prosecution relied upon a number of intercepted telephone conversations. A transcription of those calls can be found exhibited to the affidavit of Alyson Ann Bradley, sworn 12 April 2001. There was evidence that the applicant was known as "Huy" and there is evidence which was available to the jury to infer that the applicant had posted the parcel of heroin to an address which he utilised in Western Australia and taken possession of it when it arrived.
In addition, however, and importantly, there was evidence of nine intercepted telephone calls made by a Crown witness, Colin Nguyen ("Nguyen"), a Vietnamese liaison police officer, who testified that he had been in Australia over 15 years and taught English as a second language in Vietnam prior to his coming to Australia. He testified that he had a diploma of interpreting and was accredited as a level 3 translator in the English and Vietnamese languages. He said that he had interpreted for a period of over ten years and his evidence was that he had interpreted as a witness in court approximately 1,000 times. Nguyen's evidence was that after being engaged by the police in relation to this matter, he had listened to something over 600 telephone calls and had become familiar with the voice of one of the people in the telephone calls who described himself as Huy. Over the period that Nguyen had listened to those intercepted telephone calls, he said he had developed a familiarity with the voice of Huy and he said that he was able to identify Huy's voice in nine specific conversations. Importantly, Nguyen did not say that the voice with which he was familiar, that is, the voice of Huy, was the voice of the accused present in court. His evidence was simply to the effect that he had listened to approximately 600 telephone calls in which Huy was one of the speakers and he was able to say that he could identify Huy's voice. In the nine telephone calls, transcripts of which were tendered in evidence, he was able to testify that the voice that he knew as being that of the man called Huy was one of the voices that he could identify. As I understand the evidence, Nguyen was saying that he was able to identify Huy's voice because of the number of times he had listened to it and as a result he was able to say that Huy's voice was recorded in each of the nine telephone calls.
Importantly, the applicant testified at trial and admitted that three of the nine telephone calls were telephone calls in which he was a participant. However, he specifically denied that he was a participant in the remaining six calls.
The applicant has appealed on two grounds. The first of which attacks the indictment and is of no relevance to the question of bail. The second relates to the failure by the learned trial Judge to give the jury a warning in relation to the evidence of voice identification. It is only the ground of appeal which relates to voice identification which is relevant to this application.
Counsel for the applicant rightly pointed out that the learned trial Judge said very little about the voice identification evidence. In that respect, his Honour said to the jury:
"There are a number of questions for you to decide, but I have listed some which I think will be important for you to consider. These are by no means a complete list but some things which I think you should consider and will be part of your consideration. Firstly, obviously, was the accused the speaker Mr Huy on the phone in all those conversations; namely, not only the three he admitted being involved in, but the other six? Do you accept the evidence of Mr (sic) Ngyen to the required degree? Do you accept the evidence of Mr Price to the required degree? What do you make of the conversations and some of things which were said?
Various comments were made by counsel as to, for example, phone call 77, 'I'll come back on Thursday,' on No 91 the question of sending a letter; on 116 the details of 4B, the expression, 'send it' and the expression, 'no need to sign for it'. Those things are matters for you to consider and give some meaning to; the reason for the accused's presence at 4B Alexander Drive and the number of coincidences that occurred."
What his Honour did not do was to give the jury any warning of the dangers of voice identification evidence of the kind referred to in Bulejcik (1996) 86 A Crim R 467 per Toohey and Gaudron JJ at 481:
"Where a witness identifies a voice on the basis of having heard it before, the witness needs to have heard a sufficient amount of the accused's speech to be familiar with it because, in saying that the voice at the crime scene is that of the accused, the witness is relying on his or her memory of the accused's voice. Where a witness identifies a voice on the basis of having heard it subsequently, there should be something about the voice at the crime scene to sufficiently embed it in the witness's memory so as to enable him or her to say that it is the same as a voice which he or she heard subsequently. The greater the distance in time between when the two voices compared were heard, the greater the desirable degree of familiarity or distinctiveness."
Bulejcik was an unusual case where the jury asked the trial Judge if they could listen to the appellant's dock statement recorded in court for the purpose of comparing it with his tape-recorded voice on an exhibit. The trial Judge permitted the jury to do so. Toohey and Gaudron JJ in their joint judgment said further at 484:
"Where the jury is itself asked to make a comparison of voices in a situation such as this one, very careful directions are called for. It is not irrelevant that in the case of handwriting comparisons, it has been said to be unsafe to leave the matter to the jury without the guidance of an expert. It is unnecessary to go that far in the case of a voice comparison but, in our view, it is unsafe to leave that matter to the jury without very careful directions as to those considerations which would make a comparison difficult and without a strong warning as to the dangers involved in making a comparison. This was not done in the present case."
In this case, counsel for the applicant submits that a similar warning should have been given to the jury. Whether or not that is so is a matter for the Court of Criminal Appeal to consider but in my view there are some distinctions to be drawn between Bulejcik's case and the present. In this case, Nguyen was not testifying that the voice that he knew as that of Huy was the voice of the applicant. As I have said, all he was saying was that that voice that he recognised as that of Huy was the voice consistently involved in all the telephone calls that he monitored. Whether the voice of Huy was that of the accused was very much a matter for the jury, bearing in mind the admission of the applicant in evidence that he was a party in three of those calls. It was not a case where the jury had to make an evaluation for themselves of the audio-recorded material. Rather, in my view, the question for the jury was whether they accepted Nguyen's evidence that he was able to make the appropriate identification. As I have said, whether a warning should or should not have been given will no doubt be a matter for the Court of Criminal Appeal to consider in all the circumstances of the case.
I would further add that in my view there was other evidence in the Crown's case which independently of the audio recorded telephone calls could have led the jury to conclude that the applicant was guilty of the offences with which he was charged. One of the possibilities open in this case is that the Court of Criminal Appeal may reach the view that although a warning should have been given, no miscarriage of justice has occurred because there was other evidence from which the jury could properly have inferred the applicant's guilt.
In all the circumstances, therefore, I am not persuaded that the applicant has demonstrated exceptional circumstances in the sense referred to by Franklyn J in Bond's case. As I have said the appeal is to be heard in the July sessions of this Court and, if, as counsel for the applicant maintains, the merits of the appeal are strong then the Court of Criminal Appeal itself can revisit the question of bail at the end of the hearing.
I am not persuaded that sufficiently exceptional circumstances have been demonstrated and the application will be dismissed.