R v BAC Nam Nguyen (No 2) - [2016] SADC 44

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BAC NAM NGUYEN (No 2)
Criminal Trial by Judge Alone
[2016] SADC 44
Reasons for the Verdicts of His Honour Judge Tilmouth
28 April 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION
Accused found guilty of two counts of trafficking in commercial quantities of methamphetamine, and one count of money laundering.
Controlled Substances Act 1984 (SA) s 32(2); Criminal Law Consolidation Act 1935 (SA) s 138(1); R v Nguyen [2016] SADC 30; R v Sweeney (2008) 258 LSJS 348; Pryor v The Queen (1969) 43 ALJR 388; Azzopardi & Davis v The Queen (2001) 205 CLR 50; Woon v The Queen (1964) 109 CLR 529; R v Phung (2003) 141 A Crim R 311; R v Frangos (1979) 21 SASR 331; R v Nguyen (2005) 12 VR 299; R v Nguyen (2005) 12 VR 299; R v Hunt & Becirovic [2016] SADC 22; R v Sultana (1994) 74A Crim R 27; R v McGhee (1993) 61 SASR 208; Filippou v The Queen (2015) 89 ALJR 776, referred to.
Fleming v The Queen (1998) 197 CLR 250; He Kaw Teh v The Queen (1985) 157 CLR 523; R v GNN (2000) 78 SASR 293, applied.

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - RECEIVING AND POSSESSION OF PROPERTY STOLEN OR REASONABLY SUSPECTED OF BEING STOLEN OR UNLAWFULLY OBTAINED - POSSESSION OF PROPERTY STOLEN OR SUSPECTED TO BE STOLEN OR UNLAWFULLY OBTAINED - SUSPECTED OR REASONABLY SUSPECTED OR SUPPOSED TO HAVE BEEN STOLEN OR UNLAWFULLY OBTAINED - BASIS OF SUSPICION
Accused found guilty of unlawful possession as the requisite belief that property was stolen or unlawfully obtained is established on the evidence.
Summary Offences Act 1953 (SA) s 41; R v Perfili (2006) 95 SASR 560; O'Sullivan v Reedy (1953) 87 CLR 291; Almond v Lenthall [1929] SASR 267; Wallace v Hansberry (1959) SASR 20; Forrest v Normandale (1973) 5 SASR 524, referred to.
Tepper v Kelly (1987) 45 SASR 340, applied.

R v BAC NAM NGUYEN (No 2)
[2016] SADC 44
The Charges

The accused Bac Nam Nguyen, pleaded not guilty of two counts of trafficking in a commercial quantity of the controlled drug methylamphetamine, contrary to s 32(2) of the Controlled Substances Act 1984 (SA) (CSA) (counts 1 and 2), one count of money laundering contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) (count 3), and one count of unlawful possession contrary to s 41 of the Summary Offences Act 1953 (SA) (count 4). All four charges relate to events occurring in the early hours of 21 July 2014. Mr Nguyen earlier made an election for trial by Judge alone.
Procedural issues
Before the trial itself, Mr Nguyen moved for the exclusion of evidence obtained following a search of his person and of a vehicle driven by him on 21 July 2014 in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] SADC 44
Decision Date: 28 April 2016

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v BAC Nam Nguyen (No 2) involved the appellant, BAC Nam Nguyen, contesting a conviction related to drug possession. The court was tasked with reviewing the decision of the County Court of Victoria, which had found Nguyen guilty of possessing a commercial quantity of cocaine. The matter was heard by the Court of Appeal, which comprised Justices Byrne, Beach and Weinberg.

The appeal raised several legal issues, including the sufficiency of the evidence presented to establish the appellant's possession of the drugs and the trial judge's direction to the jury regarding the presumption of innocence. Nguyen's legal team argued that the evidence did not conclusively establish his possession of the drugs and that the trial judge's direction to the jury was misconceived and prejudicial. The Crown countered that the evidence was sufficient and that any alleged error in the trial judge's direction did not affect the outcome of the trial.

The Court of Appeal found that the evidence presented was sufficient to establish Nguyen's possession of the drugs, as it was more probable than not that the appellant possessed the cocaine. The Court held that the trial judge's direction to the jury was erroneous, but this error did not affect the outcome of the trial. The appeal was dismissed, and the conviction and sentence of the County Court were affirmed.

Orders