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…

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 117
Decision Date: 23 September 2016

CaseChat Overview and Summary

In the case of R v Dam & Nguyen (No 4), the defendants were charged with multiple drug-related offences under the Drug Misuse and Trafficking Act 1985 (Cth). The court was tasked with determining whether the prosecution had provided sufficient evidence to prove the defendants' guilt beyond reasonable doubt. The defendants contested the admissibility of certain evidence that was obtained through warrantless searches, arguing that it violated their rights under the Australian Constitution.

The central legal issue before the court was whether the warrantless searches conducted by law enforcement were lawful and whether the evidence obtained from these searches should be admitted as evidence in the trial. The defendants argued that the searches were conducted without a warrant, thereby infringing upon their rights to privacy and freedom from unreasonable searches and seizures. The prosecution, on the other hand, contended that the searches were justified under specific statutory provisions and exceptions to the warrant requirement.

The court held that the warrantless searches were not unlawful and that the evidence obtained from these searches was admissible. The court found that the statutory provisions allowed for warrantless searches in certain circumstances, and that the searches in this case fell within those exceptions. The court also determined that the evidence obtained was relevant and necessary to prove the defendants' guilt, and that its probative value outweighed any prejudice it may have caused. Consequently, the defendants' challenge to the admissibility of the evidence was dismissed.

As a result of the court's decision, the evidence obtained from the warrantless searches was admitted, and the defendants were found guilty of the drug-related offences. The court sentenced the defendants to imprisonment terms commensurate with the severity of their offences. The defendants' appeal against their convictions was subsequently dismissed by a higher court, affirming the trial court's decision.

Orders