Quoc Danh Pham v The Queen

[2015] VSCA 263

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0091

QUOC DANH PHAM	Applicant
V
THE QUEEN	Respondent

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JUDGES:	KAYE and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 September 2015
DATE OF JUDGMENT:	18 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 263
JUDGMENT APPEALED FROM:	DPP v Pham (Unreported, County Court of Victoria, Judge Murphy, 16 April 2015)

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CRIMINAL LAW – Conviction – Cultivation of cannabis in a commercial quantity – Photoboard identification by witness of accused – Defence counsel incorrectly informed by prosecution that accused was in prison custody at time of identification – Defence counsel thereby induced not to object to admissibility of evidence under s 115(5) of Evidence Act 2008 – Error conceded – Substantial miscarriage of justice – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Valos Black and Associates
For the Crown	Mr G Silbert QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

KAYE JA
McLEISH JA:

1. The applicant was convicted, by the jury empanelled on his trial, on one charge of cultivating cannabis in not less than a commercial quantity.  He was sentenced to a total effective term of 5 years and 3 months’ imprisonment, with a minimum non-parole period of 3 years and 4 months.

1. The applicant has sought leave to appeal against his conviction and sentence.  The respondent has conceded that he ought to be granted leave to appeal against his conviction on ground 1A(a) that is contained in the notice of application for leave to appeal against conviction.  For the reasons that follow, we consider that that concession is correct.  Accordingly, we propose to grant the applicant leave to appeal on that ground, to treat the appeal as instituted and heard instanter, and to allow the appeal. 

1. It is not necessary to set out, at length, the background facts.  The prosecution case was that the applicant was a party, in 2013, to a joint enterprise with others to cultivate a commercial quantity of cannabis at factory premises in Sunshine North.  Those premises were owned by Mr Charles Attard.  The prosecution alleged that in February 2013, the applicant attended that property, in company with an elderly man, Mr Phuong, and others.  Following a later inspection, Mr Attard executed a lease with Mr Phuong for a period of 18 months.  The first month’s rent was paid to Mr Attard in cash.  Thereafter, until August 2013, rent was paid monthly to Mr Attard in cash at the car park of the Bunnings Warehouse store in Sunshine.

1. Mr Attard’s evidence at trial was that the applicant was present at the first meeting at the factory, and that he subsequently dealt with the applicant on at least three, but possibly more, occasions relating to the payment of rent. 

1. On 2 September 2013, police commenced surveillance duties outside the factory.  At about 9.30 am on that day, a vehicle registered to the applicant attended at the factory and parked some distance from the entrance.  The applicant was in the driver’s seat with a Mr Lam in the passenger seat.  After a second vehicle arrived, the applicant drove his vehicle into the factory under a roller door.  The police then executed the search warrant. 

1. Upon entering the factory, the police located an elaborate and extensive hydroponic operation.  A large quantity of cannabis plants, weighing 258 kilograms, were found.  The applicant’s vehicle was searched and police located, in it, a number of items, including hydroponic hose fittings, a face mask, an address to a garden supply business, and a small amount of cannabis.

1. The applicant was taken into custody on 2 September.  He made denials during his record of interview.  Subsequently, on 5 September, Mr Attard participated in a photo board identification process, in which he recognised a photograph of the applicant as the person who inspected the factory and subsequently paid the rent to him. 

1. At trial, defence counsel objected to the admissibility of the photo board evidence.  Counsel, who appeared for the applicant, has sworn an affidavit which is filed in the proceedings, and which the respondent accepts as accurate.

1. Before pre-trial argument, defence counsel asked the prosecutor whether the applicant had been given the opportunity to participate in an identification parade before the photo board evidence was obtained.  After seeking instructions from the informant, the prosecutor advised defence counsel that the applicant was not offered, or asked to participate in, an identification parade; that the applicant had been too quickly removed from police custody so that, by the time of the photo board identification by Attard, the applicant was in the custody of Corrections; and the informant did not think it reasonable or feasible, nor indeed possible in those circumstances, to arrange for the applicant to participate in an identification parade.

1. Understandably, defence counsel accepted and relied on the information that was given to him by the prosecutor. As a consequence, he did not seek to contest the admissibility of the photo board evidence on the basis that it should be excluded under s 115(5) of the Evidence Act 2008.  Rather, defence counsel confined his objection, to the photo board evidence, to arguments in respect of the application of s 137 and s 138 of the Act. 

1. It transpires that the information that was provided by the prosecutor to defence counsel was incorrect.  In fact, after the applicant was arrested and interviewed on 2 September 2013, he was remanded in police custody.  On 3 September 2013, he appeared at a filing hearing in the Magistrates’ Court at Melbourne.  He was not transferred to the Melbourne Assessment Prison until 16 September 2013.  Before that, he remained in the custody of the Victoria Police Force.  At the time of the photoboard identification on 5 September 2013, he was being held at the Melton Police Station, and thus was in the custody of the Chief Commissioner of Police.[1]  The respondent accepts that this was the case.

   [1]Corrections Act 1986 s 6D(1)(b) and (3), s 11.

1. In addition, the applicant was not asked by the police, at any relevant time before the photo board identification, or at all, whether he would participate in an identification parade. 

1. Ground 1(a) of the notice of application for leave to appeal against conviction is as follows:

A substantial miscarriage of justice was occasioned by the admission into evidence of the witness Attard’s photo board identification of the applicant (‘the photo board evidence’) in circumstances where:

(a)before pre-trial argument, defence counsel was given mistaken or false information about why an identification parade was not offered to the applicant or conducted;

(b)the prosecutor did not satisfy the court that the identification evidence was, under s 115(5) of the Evidence Act 2008 admissible; and

(c)the evidence was, pursuant to s 115 of the Evidence Act 2008, not admissible.

1. In the revised response to the applicant’s written case, the respondent concedes that the application for leave to appeal, and the appeal, should be allowed, on the basis of ground 1(a).

1. That concession is plainly correct. At trial, there was a live issue as to the admissibility of the photo board evidence pursuant to s 115(5) of the Evidence Act, as the applicant had not been offered the opportunity to take part in an identification parade involving Mr Attard. Section 115(5) only applies to a picture identification if the accused was in police custody when the identification took place. Defence counsel was wrongly informed that this condition was not met. Since the section did, in fact, apply, the critical question was whether, pursuant to s 115(5)(c), the prosecution could establish that it would not have been reasonable in the circumstances to have held an identification parade that included the applicant. Defence counsel was entitled to rely on the information given to him by the prosecutor as to the reason why the applicant had not been given the opportunity to participate in an identification parade involving Mr Attard. The incorrect information provided by the prosecutor had the direct result that defence counsel, correctly at the time, felt that s 115 did not apply and that, in any event, he could not sustain an argument that s 115(5)(c) was not satisfied. Thus, as a result, these important issues were not explored at the trial.

1. As the respondent correctly accepts, those circumstances amount to an irregularity in the trial pursuant to s 276(1)(b) of the Criminal Procedure Act 2009. The respondent acknowledges — again correctly — that it could not sustain an argument that the applicant’s conviction was inevitable in any event[2] and accordingly the respondent accepts that there has been a substantial miscarriage of justice, pursuant to that section.

   [2]See Baini v The Queen (2012) 246 CLR 469.

1. It is on that basis that we would grant leave to appeal, allow the appeal, and quash the conviction.  We emphasise that the application, and appeal, succeeds on the basis of ground 1(a).  In reaching that conclusion, we do not decide whether or not the photo board evidence may be admissible on the re-trial of the charge against the applicant.  That question is a matter for the trial judge to determine after hearing argument, and, if necessary, evidence on a voir dire, in relation to it.

1. For the reasons that we have shortly stated, we shall therefore make the following orders:

(1)The applicant shall be granted leave to appeal against conviction.

(2)The appeal is treated as instituted, heard instanter, and is allowed.

(3)The conviction sustained by the appellant on 26 February 2015 in the County Court of Victoria is set aside.

(4)The Court directs that there be a new trial.

(5)Without prejudice to any application that the appellant may make for bail, the appellant is remanded in custody to appear for mention in the County Court of Victoria at Melbourne on 24 September at 9am.

(6)Grant the appellant an indemnity certificate under s 14 of the Appeal Costs Act 1998.

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