R v Dam & Nguyen (No 4) - [2016] SADC 117

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v DAM & NGUYEN (NO 4)
[2016] SADC 117
Reasons for the Verdicts of His Honour Judge Barrett
23 September 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - EVIDENCE
The male accused is charged on his own account with 2 counts of trafficking in controlled drugs, heroin and methylamphetamine, and 1 count of unlawful possession of $110. The drugs and cash were found on his person at Bowden. Both accused are charged with a further count of trafficking in a controlled drug, methylamphetamine, and 3 counts of unlawful possession of cash amounting to $212,550. The drugs and cash were found at their home.
Held: the male accused is guilty of the 3 charges against him alone and both accused are guilty of the 3 charges against them jointly.
R v Dam and Nguyen [2015] SADC 84; R v Dam and Nguyen: Case stated on Questions of Law (No 2 of 2015) [2015] SASCFC 131; R v Dam & Nguyen (No 3) [2016] SADC 116; R v Zotti (2002) 82 SASR 554; Perna v Police (2007) 99 SASR 151; R v Golding & Edwards (2008) 100 SASR 216; Spence v Demasi (1988) 48 SASR 536; He Kaw Teh v R (1985) 157 CLR 523, considered.

R v DAM & NGUYEN (NO 4)
[2016] SADC 117

The male accused Tuan Dam (“Dam”) is charged on his own account with two counts of trafficking in a controlled drug. Count 1 relates to methylamphetamine and count 2 relates to heroin. He is also charged with unlawful possession of $110 cash. These offences are alleged to have occurred on 20 February 2013 at Bowden when Dam was located by police in a van and searched.
Dam and his wife Thi Dao Nguyen (“Nguyen”) are jointly charged with one count of trafficking in a controlled drug, (count 3, relating to methylamphetamine), and three counts of unlawful possession of cash, counts 4, 5 and 6. The drugs and cash were found by police when they searched the house occupied by both accused later on 20 February 2013. Police found $1,650 in one bedroom, (count 4), $49,850 in another bedroom, (count 5) and $161,050 in the pantry, (count 6).
The trial is by judge alone. Most of the prosecution’s case was presented by witness statements and exhibits. The prosecution called only two witnesses to give oral evidence, the police officer conducting the search at the house and a DNA expert. Neither accused gave evidence. Nguyen sought to have her Record of Interview with police tendered but the prosecution opposed the tendering on the basis that the interview was solely exculpatory. It was agreed I should receive the Record of Interview on the voir dire (Exhibit VD-D13) and rule on its admissibility in this judgment. The accused also tendered their antecedent records showing that neither has any criminal record.
Despite pleading not guilty, no submission was put before me as to why I would not find Dam guilty of all six counts. That however is in the context that the legality of the search of him at Bowden by the police and the search of the house at Pooraka is challenged.
It is necessary to trace the history of the pre-trial voir dires which led to the admission into evidence of the fruits of both searches.
Voir Dires
In a ruling delivered on 3 June 2015 (R v Dam and Nguyen [2015] SADC 84) I determined that the police search of Dam at Bowden was unlawful and the fruits of the search should be excluded. I also determined that the unlawfulness of the search at Bowden tainted the subsequent search of the house at Pooraka. I excluded the fruits of that search as well.
On the application of the prosecution, I stated a case for consideration by the Court of Criminal Appeal as to the correctness of my rulings.
On 17 September 2015 the Court of Criminal Appeal published a decision (R v Dam and Nguyen; Case stated on Questions of Law (No 2 of 2015) [2015] SASCFC 131) setting aside my rulings and remitting the matter to this court for trial in accordance with the answers given to the questions reserved. The trial resumed before me with a voir dire being conducted in December. On 4 December 2015 the prosecution called the officer who searched the accused at Bowden and on 14 December Dam gave evidence on his own behalf.
Supplementary written submissions were to be filed on behalf of the accused by 23 December 2015 and by the prosecution by 8 January 2016. On 24 March 2016 I delivered a ruling[1] admitting the evidence of the searches, both at Bowden and Pooraka. The trial proper was heard before me on 30 May 2016. The only witnesses who gave oral evidence were one of the officers who conducted the search of the house at Pooraka and the DNA witness. I reserved my decision on 30 May 2016.
[1] R v Dam & Nguyen (No 3) [2016] SADC 116.
The Trial
I deal first with counts 1, 2 and 3, the counts relating to Dam alone. I will not set out in detail the circumstances of the search of him at Bowden. I refer to my later ruling on the voir dire for those details. I summarise the results of the search.
Dam was searched on the footpath of Hawker Street Bowden after being asked to get out of the van he had been driving. Five small packets of drugs were found in his shoes. In one shoe there were three packets of methylamphetamine weighing 1.63, 1.66 and 1.67 grams. There was a total of 4.96 grams of which 3.48 was pure methylamphetamine. In the other shoe there were two packets of heroin, one weighing 1.68 grams and the other weighing 1.71 grams. Of the total of 3.40 grams, .8 grams was pure heroin.
There was no evidence at Bowden or at Pooraka to suggest that either accused was a user of drugs. A known drug user had just got into the passenger seat of the van in Bowden. Dam was driving. That is what led Senior Constable Graham to investigate Dam in the first place.
I am satisfied beyond reasonable doubt that Dam was trafficking in those two drugs. He possessed both of them with the intention of selling them. He knew that both drugs were controlled drugs.
I find the accused Dam guilty of counts 1 and 2.
Count 3 is a charge of unlawful possession of $110 cash which Dam had in his wallet at Bowden. That charge is proved if the prosecution can first prove beyond reasonable doubt that the accused was in possession of the money. There is no doubt about that. Second, the prosecution must prove that Senior Constable Graham reasonably suspected that the money was obtained unlawfully. In this case that means that the money was the proceeds of sale of drugs. If both of those matters are proved then the accused will be found guilty of unlawful possession of the cash unless he is able to satisfy me on the balance of probabilities that he did not come by the money by selling drugs.[2]
[2] R v Zotti (2002) 82 SASR 554 at [39]; Perna v Police (2007) 99 SASR 151 at [24]-[47].
The amount of money is small. It would be unremarkable for anyone to have that amount of money on them. On the other hand it was plain that Dam was intending to sell the drugs in his shoes. There was not at Bowden, or later at Pooraka, any indication that Dam or his wife were users of the drug. It is true that there is evidence of Dam being a tiler. There were bags of grout in the back of the van. He had a business card and a document that appeared to be a receipt for $1,000 possibly for tiling. Nevertheless the burden for the prosecution is simply to prove a suspicion based on reasonable grounds.
I find that the officer’s suspicion was a reasonable one. Dam has not sought to discharge the onus on him to persuade me on balance that the money was not unlawfully obtained.
I find Dam guilty of count 3.
The two accused are charged jointly with counts 4 to 7. Count 4 is the charge of trafficking in the methylamphetamine located at the house at Pooraka. Police found seven small bags of methylamphetamine which weighed a total of 11.73 grams. 8.25 grams was pure methylamphetamine. The bags were secreted in a toy car in a drawer in what is described as bedroom one.
Brevet Sergeant Gale, who was not called as a witness but whose four witness statements were tendered said of that bedroom that it contained a single bed and had some men’s clothing in it.
In the same drawer as the toy car was a set of digital scales. DNA evidence suggested that the DNA of both accused was on those scales. There were traces of both methylamphetamine and heroin on the scales. There were some indicia of sale visible in that bedroom. It was the middle bedroom in the house. There were new resealable bags on a desk and three mobile telephones next to a TV. There was another mobile phone in a drawer. There was $1,650 cash on the desk. That cash is the subject of count 5, one of the charges of unlawful possession. In a bedroom at the front of the house, which Gale marked as bedroom 2, nothing incriminating was found. Gale observed items in the room which led her to conclude that the room might be occupied by a female and a child. The accused lived at the house with their two year old child.
In a bedroom at the back of the house marked both bedroom 6 and bedroom 3, police found $49,850, the subject of count 6, in a wardrobe. In the same wardrobe Dam’s New Zealand passport was located. Gale has no recollection of type of clothing found in that bedroom. The cash found in that wardrobe is the subject of count 7.
Police officer Rigano said that this third bedroom had the appearance of a store room.
In a pantry off the kitchen police found $161,050 wrapped in six bundles secreted in the rice in a rice dispenser. Police had to reach into the rice to locate the cash. There were new resealable bags on a shelf in the pantry. There was a mobile phone in each of the kitchen and the lounge room.
In a bag of chicken feed in a garden shed in the back yard police found a bag of paracetamol, a drug which is currently used to bulk up heroin.
A statement of an Avis car rental employee indicates that Dam had regularly hired vehicles from them. The employee gave details of the six most recent hirings by Dam. They are as follows:
·28 November to 1 December, a Toyota sedan
·1 December to 9 December, a Hyundai
·18 December to 21 December, a Rav4
·4 January to 9 January, a Toyota Orion
·9 January to 4 February, Nissan X-Trail
·18 February to 22 February, Hyundai van (the van Dam was driving at Bowden)
Both accused were joint tenants of the house at Pooraka. Their tenancy agreement was for the year from 9 June 2012 to 9 June 2013.
I turn to consider the evidence adduced by the prosecution in respect of Dam. The evidence of him being in possession of the drugs at Bowden is admissible in respect of the charges against him at Pooraka. The circumstantial evidence implicating him is as follows:
1The possession of drugs for sale at Bowden.
2The matching of the plastic containers of the heroin at Bowden and bags at Pooraka.
3The presence of the drugs at Pooraka being in a bedroom likely to have been occupied by him.
4The cash in ‘his’ bedroom.
5The scales and plastic bags in a drawer in the same bedroom.
6The cash in the third bedroom and the pantry.
7The cutting agent in the chicken feed.
8The frequent use of different hire vehicles. Hire vehicles are commonly used by drug traffickers to avoid detection.
9Dam’s DNA on the scales found in ‘his’ bedroom.
I find that the combined effect of this evidence is such as to exclude any rational explanation for Dam’s innocence of counts 4 to 7. I find that he possessed the drugs in the house for the purpose of selling them. In fact I fund that he proposed selling all of the drugs. There is no evidence that he or his wife would have consumed any of it. I find that Dam was in the business of selling drugs. I am satisfied that all three amounts of cash found in the house were proceeds of sale of drugs.
I find Dam guilty of counts 4, 5, 6 and 7.
I turn to the evidence implicating Nguyen. The question in respect of count 4 is whether I can be satisfied beyond reasonable doubt that she, jointly with her husband, possessed the drugs found in the house with the intention of selling them or alternatively whether she knowingly permitted her house to be used for the purpose of her husband trafficking in the drug.
Section 4(1) of the Controlled Substances Act defines “traffic” to include “take part in the process of sale of the drug”. Subsection (4) provides that taking part in the process of sale includes taking or participating in any step in the process of sale. Subsection (5) provides that a step in the process of sale includes “providing or allowing the use of premises or jointly occupying premises”.
It is convenient to identify the evidence implicating Dam which does not implicate Nguyen. The fruits of the search at Bowden do not implicate her. It is likely she occupied bedroom two rather than bedrooms one or three. Nothing incriminating was found in bedroom two. It will be necessary to consider her access to bedrooms one and three but no drugs, paraphernalia or cash was found in bedroom 2.
Nguyen did not herself hire the vehicles used by Dam although her awareness of those vehicles will have to be considered.
The evidence which has to be considered in relation to the implication of Nguyen is as follows:
1.Her relationship with Dam.
2.Her possible knowledge of the drugs in bedroom 1 and the cash in bedrooms 1 and 3 and the pantry.
3.Her possible knowledge of the paraphernalia in the house.
4.Her knowledge of the cutting agent in the chicken feed.
5.Her contact with the scales in bedroom 1.
Before turning to that evidence I deal with the admissibility of Nguyen’s interview with Detective Brevett Sergeant Winterfield. The interview took place in the Port Adelaide police station at 3.55pm on 20 February 2013. An interpreter was present. The interview did not proceed very far because Nguyen indicated that she wished to speak to a lawyer. The interview really consisted of the police officer explaining Nguyen’s rights to her. The only substantive answers followed upon the officer’s explanation to Nguyen of her being arrested and the details of the allegations. The former was at the beginning of the interview and the latter at the end. After Winterfield explained to Nguyen that she had been arrested, Nguyen said, ‘I know, I know nothing about that. I just stay home and do my home duties and look after my son’.
Towards the end of the interview when Winterfield summarised the evidence, after saying that she would not continue the interview Nguyen said, “I know nothing about that”.
If Nguyen’s answers in the interview were wholly exculpatory then the interview is inadmissible. If on the other hand it is partly inculpatory then the whole interview is admissible.[3]
[3] R v Golding & Edwards (2008) 100 SASR 216 at [50]-[57]; Spence v Demasi (1988) 48 SASR 536 at 540.
Mr Anders submitted that the interview was admissible because what Nguyen said was not entirely exculpatory. Her admission in the first answer that she lived in the Pooraka was to a degree, inculpatory. I accept that submission. Nguyen’s acknowledgment that she lived in the house, by the clearest implication, with her husband Dam, is to a degree inculpatory. Her cohabitation with Dam in the house is an important piece of circumstantial evidence relied on by the prosecution in support of its case against Nguyen.
Because the interview contains an inculpatory utterance, the rest of the interview, such as it is, is admissible notwithstanding that it is largely exculpatory. The exculpatory utterances may be considered by me in deliberating on the case against the accused. Her denials to the police are part of her case. I am of course entitled to bear in mind that the denials are not to be equated with sworn evidence. They are not given on oath or affirmation and they were not subjected to cross-examination. I admit the interview into evidence. Voir Dire exhibit D-13 becomes Exhibit D13.
I return to the circumstantial evidence relied on by the prosecution. The first piece of circumstantial evidence is Nguyen’s relationship with Dam. The couple were married in Vietnam in August 2007. Dam was 35 and Nguyen was 23. The marriage certificate Exhibit P5, recites that Dam was born in Vietnam but was a citizen of New Zealand. Nguyen was a citizen of Vietnam.
The couple had leased the house at Pooraka since June 2011. I find that at the time the police searched, the couple were cohabiting in the house. They had a child who was about two years old. I regard Nguyen’s cohabitation with Dam as a piece of circumstantial evidence of some weight tending to suggest that she knew of his drug trafficking.
I turn to the evidence of the drugs, paraphernalia and cash found in the house. The drugs were secreted in the toy car in a drawer in bedroom 2, the bedroom possibly, largely, occupied by Dam alone. Taken in isolation, it might well be that Nguyen was not aware of the location of those particular drugs.
The scales were also found in the drawer in bedroom 2. They had on them traces of heroin and methylamphetamine. DNA, strongly suggestive of being deposited by Nguyen and less strongly suggested of deposit by Dam was found on the scales. The DNA expert, Ms Windram, said that it was not possible to determine whether DNA is deposited on an item by primary of secondary contact. That means that Ms Windram cannot say whether Nguyen actually touched the scales herself or whether she touched some other object which then came into contact with the scales, transferring her DNA to the scales. Further it is not possible to ‘age’ DNA deposits. For example it may be that Nguyen touched the scales for some perfectly innocuous purpose, and later Dam used the scales to weigh drugs. With those limitations in mind I am nevertheless regard the DNA evidence as of some small weight tending to show that Nguyen knew of Dam’s drug trafficking and took some part in it. However the weight of that evidence is small.
I turn to the evidence of plastic bags. There were plastic bags visible in the second bedroom and the pantry. Taken in isolation they would be little weight in proving Nguyen’s knowledge of drug dealing. I think it likely that Nguyen saw the plastic bags in the pantry, even if she did not see those in the second bedroom.
I turn to the evidence tending to show that Nguyen was aware of the large amounts of cash in the house.
There is evidence that the $1,650 found in the second bedroom was in plain sight on top of the desk. Mr Anders points to the evidence of police officer Paul Anderson who said that he could not remember where the money was when he went into the bedroom. He also could not remember whether the bedroom door was locked. Other police saw the money on the desk and no witness speaks of the bedroom door being locked. I find that the bedroom door was not locked. A locked bedroom door would be the sort of unusual feature of a house that any police officer who noticed it would have mentioned. As to whether the $1,650 was on the desk, those officers who speak of it say it was on top of the desk. In those circumstances I think it likely that Nguyen would have been aware of its presence.
In respect of the $49,850 found in the wardrobe in the third bedroom, I think it likely that Nguyen was aware of that too. Dam certainly ran a considerable risk of his wife discovering the money if he hid it in a wardrobe in that room. Even if the room was used as a store room, as opposed to a bedroom, there was a considerable risk that Nguyen would discover it.
Of greater significance in my view is the $161,050 found in the rice dispenser in the pantry. I infer that it is highly likely that Nguyen would have routinely gone to the rice dispenser in the pantry. It is true that the bundles of cash were buried in the rice rather than being on the top, but if Nguyen did not know of that money, Dam ran a very considerable risk that she would discover it. If she happened to find only one of the six bundles of cash in the rice she would be highly likely to find the rest.

I find that Nguyen was aware of the large amounts of cash in the house.
The final item of paraphernalia is the cutting agent hidden in the chicken feed in the garden shed. It may be that Nguyen would have had lesser recourse to the chicken feed there than for example the rice dispenser in the pantry. If she had come upon the paracetamol in the chicken feed, it would be something so unusual that she would be likely to mention it to her husband.
It is common that drug traffickers use multiple mobile phones and use hire vehicles to hide their movements. I find that Nguyen would have been aware of the mobile phones in the house and would have been aware of her husband hiring multiple vehicles. I think it is the sort of thing she would be likely to discuss with her husband.
I am satisfied beyond reasonable doubt that the combined effect of the above pieces of circumstantial evidence is that Nguyen was aware of her husband’s drug dealing. The question then is what was her involvement?
If Nguyen is proved to be in possession of the drugs, jointly with Dam, then she would be guilty of trafficking in the drugs unless she satisfied me on the balance of probabilities that she did not possess them for the purpose of trafficking. On proof of possession of 2 grams the onus moves to her.
She denied to police all knowledge of drug trafficking but I do not accept her denial.
If Nguyen was proved to be in possession of each sum of money, jointly with her husband, and the money was reasonably suspected of being obtained unlawfully, then Nguyen would be guilty of counts 5, 6 and 7 unless she satisfied me on the balance that the money was not obtained unlawfully.
The prosecution puts its case in respect to count 4, the trafficking charge, on an alternative basis to joint possession by Nguyen. The definition of trafficking includes taking part in the process of trafficking. A part in the process of trafficking includes knowingly permitting one’s house to be used for trafficking.
I remain unsure whether Nguyen jointly possessed the drugs with Dam. Mere knowledge of the presence of the drugs would not be sufficient. She must intend to exercise some control over the drugs.[4] The only evidence having the potential to indicate control is the DNA evidence on the scales. If Nguyen was involved in weighing the drugs then she is not only in possession of the drug for selling but she is actually engaged in the trafficking itself.
[4] He Kaw Teh v R (1985) 157 CLR 523.
However the DNA evidence is possibly explained by secondary transfer. Secondary transfer might seem unlikely, but the expert, Ms Windram, would not be drawn on how likely or unlikely that explanation is. She frankly, and professionally, said that she could not say anything about that likelihood.
I am not satisfied beyond reasonable doubt that Nguyen was in possession of the drugs.
I am however satisfied that she knew that her husband was trafficking in illegal drugs. I am satisfied that she knew drugs were kept in the house and that Dam was selling them. She knew that the cash in the house was the proceeds of his sales of drugs. I am satisfied beyond reasonable doubt that, notwithstanding her denials to the police of any knowledge of the drugs, Nguyen permitted her house, the house she occupied as a co-tenant with her husband, to be used by him for drug dealing. I find Nguyen guilty of count 4.
Counts 5, 6 and 7 relate to the alleged unlawful possession by Nguyen of the three quantities of cash. I have already found that she permitted her house to be used by her husband to sell drugs. I am satisfied that she knew that the cash was the proceeds of drugs. I am satisfied that she had access to those parts of the house where the money was kept and that she knew it was there. I am satisfied that she possessed all three sums of money jointly with her husband. The police suspected, on what I find are reasonable grounds, that the money was obtained unlawfully. Nguyen has not attempted to discharge the onus of proving otherwise, except to deny to the police that she knew anything about drug trafficking. I do not accept her denials.
I find Nguyen guilty of counts 5, 6 and 7.
Verdicts
Tuan Dam
Count 1     Guilty
Count 2     Guilty
Count 3     Guilty
Tuan Dam and Thi Dao Nguyen
Count 4     Guilty in respect of each accused
Count 5     Guilty in respect of each accused
Count 6     Guilty in respect of each accused
Count 7     Guilty in respect of each accused