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 Campbelltown, and later at his place of residence in Mansfield Park. In reasons delivered on 4 April 2016 his motion was denied: R v Nguyen.[1]
[1] [2016] SADC 30.
Mr Nguyen’s trial on 7 April 2016 proceeded on the basis of the prosecution statements marked ‘B’ and a written prosecution address marked ‘A’. Both sides further agreed that the court could consider so much of the evidence taken on the preliminary motion as was relevant to proof of the charges. The opinions of the Police Officers as to suspicions aroused and the consequent belief in the right to make statutorily controlled search and seizure, are of course not relevant or admissible for trial purposes, except and insofar as they bear upon the charge of unlawful possession. The events deposed to by them are however relevant as evidence of the underlying narrative on which the charges are based.
Having tendered the statements and made submissions as to the facts, the prosecutor Mr Phillips closed the prosecution case. Mr Edwardson QC made no submission going to a case to answer. He then intimated Mr Nguyen elected not to give evidence, or to call any other evidence. Brief submissions were then made on both sides and verdicts reserved. This brief course of events does not however relieve the court of the fundamental obligation to deliver reasoned verdicts according to law: Fleming v The Queen,[2] Filippou v The Queen,[3] R v Sweeny.[4]
Underlying Facts
[2] (1998) 197 CLR 250, [30]-[33].
[3] (2015) 89 ALJR 776, [9].
[4] (2008) 258 LSJS 348, [13]-[14].
Campbelltown
The following account of events is not in issue. Shortly before 1am on Wednesday 21 July 2014, an unmarked police car driven by Senior Constable Shepherdson was on mobile ‘investigation duties’ in Clairville Road, Campbelltown, a North-Eastern suburb of metropolitan Adelaide. Shepherdson, his front seat passenger Constable Cheek and a back seat passenger Senior Constable Wise, saw a silver Toyota sedan S135BCA travelling on the same road in a South-Westerly direction towards them. They observed it turn left into Pine Street. They followed and noticed it to have stopped at an angle in the mouth of the driveway of 9A Pine Street. They conducted a number of checks using an on-board mobile data terminal, which revealed the car was registered to Van Nguyen of Mansfield Park. They then pulled up alongside the driver’s side of the Toyota sedan. Mr Nguyen was in the driver’s seat.
Very shortly afterwards, he was spoken to by Shepherdson through the passenger side window of the police vehicle. He identified them as police and asked Mr Nguyen if he had a driver’s licence. Mr Nguyen then alighted from his vehicle leaving the motor running and the driver’s door open, and approached the passenger side of the police vehicle. He provided Cheek with accurate personal details before returning to his car to search for some identification papers.
Shepherdson left the police vehicle and observed Mr Nguyen going to the Toyota and begin fidgeting in the rear of the vehicle. Shepherdson ascertained Mr Nguyen did not have a driver’s licence or any other formal means of identification with him. He did however provide his driver’s licence number, which was confirmed to be correct once Cheek ran a check through the on-board computer system.
After a further exchange, Shepherdson had Mr Nguyen empty his pockets. He placed two mobile phones on the bonnet of the police car, a packet of cigarettes, a cigarette lighter and a small notepad. The notepad contained a number of entries including multiple telephone numbers. Closer inspection of the notepad revealed further entries involving the names of persons, dollar amounts and references to quantities of drugs.
By this time Cheek had commenced a search of the Toyota, whilst Wise spoke with a male passenger. During this search Cheek found a large amount of crystalline substance in a plastic resealable bag wrapped in a heat seal bag and a rubber band, underneath the steering wheel column. This bag weighed 136g and contained 104g of methylamphetamine (the subject of count 1). When shown the bag and asked who it belonged to, Mr Nguyen made no response. Cheek next found $950 in cash folded in the middle console between the front passenger seats (the subject of count 4).
Further searches produced an HTC mobile phone from a window mount of the Toyota. Mr Nguyen was arrested and conveyed to the City Watch House for processing.
Mansfield Park
Later at about 2.20 am, Shepherdson and other Police Officers went to the home of Mr Nguyen and his parents at Mansfield Park. His brother took them to a bedroom, informing them it belonged to the accused Mr Nguyen. In the course of a search of the room, they located numerous items belonging to Mr Nguyen:
·1 plastic resealable bag (PRB)
·1 Box of PRB (in the top left side of a desk drawer)
·1 Blackberry Mobile Phone (in the same drawer)
·1 set of digital scales
·1 bag containing crystalline substance (inside a white sock behind a TV);
·1 Samsung mobile phone (on top of the desk in front of the TV);
·1 Passport in the name of B Nguyen (top right side of the desk)
·1 Apple iPhone
·1 bank statement
·1 notepad containing various names and numbers (in the third right side drawer of the desk).
·1 Cryovac bag containing white crystalline substance (wrapped in sealed plastic placed inside a black sock in a clothes basket at the base of a bed)
·$23,950 cash
·1 yellow/brown ceramic vase base containing bundles of bank notes covered with black socks on the right hand side of the desk. After flipping a yellow ceramic base on its top, three black socks were found to contain $50 notes.
·1 Telstra mobile phone
·$20,000 cash
·$20,000 cash
·$19,950 cash
·$20,050 cash
·$20,000 cash
·$20,000 cash
The cash totalled $143,950. This is this sum which forms the subject matter of count 3. When formally interviewed, Mr Nguyen admitted residing at this address but otherwise declined to answer questions, as was his right. The owners of the premises are his parents. His father is the owner of the Toyota sedan driven by him earlier that morning.
One bag of crystalline substance from the bedroom weighed 65.9g and it also contained paracetamol. The other bag from the bedroom weighed 276g and contained 216g of methylamphetamine, this being the subject of count 2.
Fundamental legal principles
The constituent elements of all four charges require proof beyond reasonable doubt. Mr Nguyen comes before the court with the presumption of innocence in his favour, and so he is entitled to the benefit of any reasonable doubt arising on the evidence in respect of each count, separately considered. He is not required to prove his innocence, or required to give evidence, nor to adduce any other evidence: R v Reeves,[5] Pryor v The Queen.[6] The failure to do so is not evidence against him, does not constitute an admission, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proven its case beyond reasonable doubt as to each charge: Azzopardi & Davis v The Queen.[7] Moreover, he was fully entitled to exercise his fundamental right to silence when spoken to by the police, from the exercise of which no adverse inference is to be drawn against him: Woon v The Queen.[8]
[5] (1992) 29 NSWLR 109, 117
[6] (1969) 43 ALJR 388, 388.
[7] (2001) 205 CLR 50, [51].
[8] (1964) 109 CLR 529, 535.
In respect of counts 1 and 2, the prosecution are required to prove possession of the drugs in each instance. Ordinarily ‘possession’ means one has in one's possession whatever is to one's knowledge, physically in one's custody or under one's physical control: He Kaw Teh v The Queen.[9] Only if it can be shown beyond reasonable doubt that he knew the methylamphetamine (or at least a controlled drug), was to his own knowledge physically in his custody or control, can he said to be in possession of it for this purpose: R v Phung,[10] R v Frangos.[11] Proof of the mere knowledge of the presence of any particular charged item is insufficient, because it is necessary for the prosecution to prove physical control over that item and an intention to exercise control over it: R v GNN.[12] The prosecution must therefore exclude the reasonable possibility that he ‘merely acquiesced’ in hiding the drugs, in the sense of merely permitting them to be concealed in the car or in the bedroom: R v GNN.[13]
Analysis of the charges
[9] (1985) 157 CLR 523, 600.
[10] (2003) 141 A Crim R 311, [33].
[11] (1979) 21 SASR 331, 337.
[12] (2000) 78 SASR 293, [20].
[13] Above [25].
Count 1
This charge of trafficking in a commercial quantity of a controlled drug relates to the 136g of crystalline powder containing 104g of methylamphetamine found under the steering column of the car driven by Mr Nguyen in Pine Avenue, Campbelltown. The essential ingredients of this offence are these:
1The quantity involved was a commercial quantity, this is not disputed.
2Methylamphetamine is a controlled drug; this is not disputed.
3Mr Nguyen trafficked in that controlled drug. A person traffics if he has possession of a drug intending to sell it: ss 4(4) to s 4(7) of the CSA.
4Mr Nguyen knew the substance was methylamphetamine, or at least that it was a controlled substance.
5Mr Nguyen knew the quantity of the methylamphetamine at the time of the commission of the offence was of or above the commercial quantity, or alternatively knew there was a significant or real chance it involved quantities not less than the specified commercial quantity: R v Nguyen.[14] The mixed weight required for a commercial quantity of methylamphetamine is 500g, whereas the pure weight required is 100g: Schedule 1, Part 2, Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA).
[14] (2005) 12 VR 299, [10] and [23].
As to the question of the possession of the methylamphetamine under the steering column of the car, Mr Nguyen was in control of the Toyota that morning. The nature, quantity and high value of the substance, coupled with the careful way in which it was packed and secreted in the steering column is strongly suggestive of the fact that it was deliberately hidden so as to avoid discovery, and clearly exposes knowledge of it and an intention to exercise exclusive control over it.
The evidence adduced in aid of proof that Mr Nguyen trafficked by forming the intention to sell this package of methylamphetamine, includes the two phones on his person, the notepad containing, dollar amounts and quantities, as well as the $950 stashed in the centre console of the vehicle. Items such as these are properly admissible as the trappings of trading in illegal drugs: R v Hunt & Becirovic,[15] and the authorities referred to therein.
[15] [2016] SADC 22.
These attributes or indicia of trafficking, coupled with the careful manner of packing and secretion of a relatively large amount of the drug in an unusual place, combines to lead to the inevitable conclusion that he could only have intended to sell it. Accordingly the elements of trafficking, and knowledge are made out. As to knowledge that this was more than 100g, as the quantity involved was marginally above 100g, there is necessarily a reasonable possibility that he did not know precisely the quantity involved, however given the gross weight of the substance, he must have acted recklessly in the sense described earlier. Mr Nguyen is therefore found guilty of count 1.
Given this conclusion there is no need to have to resort to s 32(5) of the CSA. For practical purposes this section deems Mr Nguyen to be in possession of the methylamphetamine for the purpose of sale, unless he can prove that it is more probable than not that it was in his possession for some other purpose, or for personal use only, as it is well above the prescribed quantity of 2g.
Count 2
The second charge of trafficking in a commercial quantity of a controlled drug relates to the 276g of crystalline powder containing 216g of methylamphetamine found in Mr Nguyen’s bedroom at Mansfield Park. The elements of this offence are of course identical to those on count 1.
The powder was wrapped in a sealed plastic bag hidden inside a black sock taken from a clothes basket at the base of a bed. Police further discovered a set of digital scales, numerous plastic resealable bags, four mobile phones, a notepad and a total of $143,950 in cash, secreted in various places within the bedroom. It is beyond doubt that Mr Nguyen occupied this room.
The combined attributes of the careful manner of storage, the high quantity, quality and purity of the substance, and the significant attendant apparatus of dealing, clearly gives rise to no reasonable conclusion other than that Mr Nguyen was knowingly in possession of the methylamphetamine with a view to selling it, and given the quantity, that it was over a trafficable amount. All the elements of count 2 are therefore proven to the requisite high standard, without resorting to s 32(5) of the CSA.
Count 3
The charge of money laundering pertains to the $143,950 found in Mr Nguyen’s bedroom. It was stored in bundles of mostly $20,000, inside three socks, each sock containing two bundles of cash secreted within the ceramic base of a vase, and in a desk drawer. In addition a large quantity of cash was located in the second drawer in the top right side of a desk.
Money laundering is an offence contrary to s 138 of the CLCA. Section 138(1) prohibits a person from engaging, directly or indirectly, in a transaction involving property the person knows to be ‘tainted property’. Section 138 of the CLCA provides:
Money laundering
138(1)A person who engages, directly or indirectly, in a transaction involving property the person knows to be tainted property is guilty of an offence.
(2)A person who engages, directly or indirectly, in a transaction involving tainted property in circumstances in which the person ought reasonably to know that the property is tainted is guilty of an offence.
‘Tainted property’ is defined in s 130 of the CLCA to mean stolen property, or property obtained from any other unlawful act or activity, or the proceeds of such property. Section 138(3) defines a ‘transaction’ to include receiving property, being in possession of property and concealing.
The prosecution submits Mr Nguyen ‘transacted’ by possessing the cash seized by police. The sheer total sum of money involved kept at home rather than in a bank or in safety deposit, the way in which it was carefully stored and hidden, the high denominations concerned and what must have been deliberate counting to $20,000 in most instances, strongly suggest that so much money could not be legitimately obtained or so kept for a lawful purpose.
The only reasonable inference is that it was either the proceeds of earlier trafficking, or a cash float supporting the inference of an intention to traffic: R v Sultana,[16] R v McGhee.[17] When coupled with Mr Nguyen’s bank records which reveal no significant or alternative independent sources of income, the conclusion is inescapable that he could only have known the cash was ‘tainted property’ obtained either from an unlawful act (the intention to trade in drugs), or from unlawful activity (past dealings in controlled drugs). This charge is therefore proven.
[16] (1994) 74 A Crim R 27, 28.
[17] (1993) 61 SASR 208, 209.
Count 4
The charge of unlawful possession relates to the $950 located in the centre console of the Toyota, at Pine Avenue, Campbelltown. It is usually undesirable to join a count of unlawful possession under s 41 of the Summary Offences Act with other charges, however defence counsel has no objection to this course in this instance: R v Perfili.[18] Section 41 of the Summary Offences Act provides:
[18] (2006) 95 SASR 560.
41—Unlawful possession of personal property
(1) A person who has possession of personal property which, either at the time of possession or at any subsequent time before the making of a complaint under this section in respect of the possession, is reasonably suspected of having been stolen or obtained by unlawful means, is guilty of an offence.
(2) It is a defence to a charge for an offence against this section to prove that the defendant obtained possession of the property honestly.
The elements of this offence are that the prosecution must to prove beyond reasonable doubt Mr Nguyen had the personal property (here the cash) in his possession and that the two Police Officers actually entertained at a relevant time, a reasonable suspicion the property was stolen or unlawfully obtained. Given the findings already made as to count 2, there can be no doubt he was in possession of the cash. If so proven he is to be found guilty unless he proves on the balance of probabilities that he obtained possession of the property honestly: O'Sullivan v Reedy,[19] Almond v Lenthall,[20] Wallace v Hansberry,[21] Forrest v Normandale.[22]
[19] (1953) 87 CLR 291.
[20] [1929] SASR 267.
[21] (1959) SASR 20.
[22] (1973) 5 SASR 524.

As Cox J pointed out in Tepper v Kelly:[23]
(B)ecause of the special nature of s 41 the courts have properly required strict proof of the ingredients of the charge and have examined with care the basis for the suspicion alleged.
The evidence was that Shepherdson ‘suspected Mr Nguyen had a drug [methamphetamine] or paraphernalia’ in contravention of the CSA. Cheek’s own suspicions were that he considered Mr Nguyen ‘may be in possession or involved with drugs’. Neither said at any time in so many words in their original statements with respect to the cash found in the Toyota, that they entertained a reasonable suspicion it was stolen or unlawfully obtained. However in a recent statement submitted with the consent of defence Counsel, Cheek deposes to seizing the $950 upon forming the suspicion that it was unlawfully obtained. This charge is therefore proven.
[23] (1987) 45 SASR 340, 343.
Conclusion and Verdicts
On the above analysis Mr Nguyen is found guilty of counts 1, 2, 3 and 4 as charged. Each one of the elements of these offences are proven to the requisite degree. Verdicts will be entered accordingly.