R v Dinh

Case [2015] QSC 282

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dinh & Anor [2015] QSC 282

PARTIES:

THE QUEEN
v
THI DAI TRANG DINH and
PHU TRAM LE

FILE NO/S:

No 797 of 2014

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

7 and 8 September 2015

JUDGE:

Dalton J

ORDERS:

1. Dismiss the Crown’s application.

2. Allow Dinh’s application.

3. Order that Le and Dinh be tried separately.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – PROPENSITY, TENDENCY AND CO-INCIDENCE – ADMISSIBILITY AND RELEVANCY – FOR A PARTICULAR PURPOSE – REBUTTAL OF POSSIBLE DEFENCE – PARTICULAR CASES – where the accused Dinh and Le are charged on the same indictment with possessing a dangerous drug (heroin) – where the Crown intends to rely upon s129(1)(c) of the Drugs Misuse Act 1986 (Qld) – where the Crown applied to lead similar fact evidence in the trial of Le to rebut a possible defence to s129(1)(c) – where evidence of Le’s previous conviction of possession of a dangerous drug (heroin) was sought to be led – where Le was convicted by his own plea of guilty – where the offending behaviour took place in 2002 – where different persons occupied the residential premises where the drug was located in 2002 – where the division and packaging of the drug were different in each instance – where Le denied knowledge of the drug in each instance – whether the Crown should be permitted to lead this evidence as similar fact evidence in the trial of Le

CRIMINAL LAW – EVIDENCE – PROPENSITY, TENDENCY AND CO-INCIDENCE – ADMISSIBILITY AND RELEVANCY – FOR PARTICULAR PURPOSE – OTHER CASES – where the accused Dinh applied to lead evidence of Le’s 2002 offending and evidence of Le’s guilty plea to a charge of possessing heroin in November 2014 – where Dinh sought to lead this evidence to prove that she did not know or reasonably suspect that the drugs were on the premises – whether the high standard for admissibility of propensity evidence in Pfennig v R applies

CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – JOINT OR SEPARATE TRIAL – GENERALLY – where the accused Le applied for a separate trial under s 597B of the Criminal Code 1899 (Qld) in the event the accused Dinh was permitted to lead evidence of Le’s previous offending as propensity evidence in her defence – whether Dinh and Le ought to be tried separately

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where both accused applied for the grant of a certificate under s 22(1)(c) of the Appeal Costs Fund Act 1973 (Qld) – whether the trial of the matter had begun – whether a certificate ought to be granted

Appeal Costs Fund Act 1973 (Qld) s 22(1)(c)
Criminal Code Act 1899 (Qld) s 579B, s 597C(3)
Drugs…

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Details
AGLC
R v Dinh [2015] QSC 282
Case
[2015] QSC 282
Decision Date

CaseChat Overview and Summary

The case of R v Dinh involved the defendants Dinh and Le, who were jointly charged with possession of a dangerous drug, heroin. The Crown intended to rely on section 129(1)(c) of the Drugs Misuse Act 1986 (Qld) to establish the defendants' possession of the drug. The legal issues before the court were whether the Crown should be permitted to lead similar fact evidence of Le's 2002 conviction for possessing heroin to rebut a possible defence and whether the high standard for admissibility of propensity evidence, as established in Pfennig v R, applied to the case. Additionally, Le applied for a separate trial under section 597B of the Criminal Code 1899 (Qld) in case the evidence of Le’s previous offending was admitted. Both defendants applied for a certificate under section 22(1)(c) of the Appeal Costs Fund Act 1973 (Qld) to receive financial assistance for their appeals.

The court held that the Crown’s application to lead similar fact evidence should be dismissed as the evidence did not meet the threshold for admissibility under section 140 of the Evidence Act 1977 (Qld). The court found that the evidence did not have sufficient probative value to outweigh the prejudicial effect it would have on the defendants. However, the court allowed Dinh's application to lead evidence of Le's 2002 conviction and guilty plea to establish that she did not know or reasonably suspect that the drugs were on the premises. The court concluded that the evidence was relevant for a particular purpose and not solely for propensity purposes. The court further ordered that Le and Dinh be tried separately to prevent any potential prejudice that might arise from the admission of Le's previous conviction.

The final orders of the court were to dismiss the Crown’s application to lead similar fact evidence, allow Dinh's application to adduce evidence of Le's previous conviction and guilty plea, order that Le and Dinh be tried separately, and grant the certificates under section 22(1)(c) of the Appeal Costs Fund Act 1973 (Qld) to both defendants. The court's decision highlighted the importance of balancing the probative value and prejudicial effect of evidence when considering its admissibility, and the need to prevent any potential prejudice in joint trials.

Orders

Orders of the court

1. Dismiss the Crown’s application.

2. Allow Dinh’s application.

3. Order that Le and Dinh be tried separately.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In this matter I heard three applications pursuant to s 590AA of the Criminal Code. The applications were related to each other and, to ensure consistency, it was convenient to deal with them together. The applications were as follows:(a)the Crown applied to lead similar fact evidence in the trial of Le;(b)Dinh had an application that, notwithstanding the similar fact evidence sought to be led by the Crown was excluded, she wanted to adduce evidence like it;(c)Le then made application for a separate trial (s 597B of the Criminal Code) in the event that Dinh was allowed to call evidence of the type outlined at (b) above.Application to Adduce Similar Fact Evidence Dinh and Le are both charged on the same indictment with possessing a dangerous drug, heroin. In addition, Le only is charged with receiving stolen property. So far as the drug offences are concerned, s 129(1)(c) of the Drugs Misuse Act 1986 (Qld) is to be relied upon by the Crown:“proof that a dangerous drug was at the material time in or on a place of which that person was the occupier or concerned in the management or control of is conclusive evidence that the drug was then in the person’s possession unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place; …” The evidence which the Crown will lead at trial is that police executed a search warrant at a house shared by Le and Dinh during which three plastic bags containing powdery white rock were found in a vent on an exterior wall of the house. An Officer Thomas will give evidence that one of the bags contained five individual rocks, each in its own plastic bag. Another bag contained eight individual rocks, each in its own bag. The largest of the bags contained one rock in its own individual bag. That is, there were 14 individual bagged amounts. An analyst’s certificate will be tendered to show that each of the five rocks found together weighed 3.5 grams, and each of the eight rocks found together weighed 1.75 grams, except for one which weighed 2.118 grams. So that the two smaller bags weighed 20.6 grams each; the other bag weighed 29.4 grams. Le and Dinh both denied knowledge of the substance. Le and Dinh lived in the house with Dinh’s adult children and their partners. In relation to the receiving charge, the Crown relies upon computers hidden inside the house. I was informed from the bar table that Mr Le intends to plead guilty to that charge. The evidence which the Crown submitted was similar fact evidence comes from an investigation, conviction and plea in 2002. The plea was by Le, and was to possessing heroin. The Crown wishes to call the police officer involved in the 2002 investigation, Officer Durre. He searched a duplex occupied by Mr Le and his then girlfriend. In that search white rock substance in a plastic bag was located inside a rice container in a kitchen cupboard, and a brown cello-taped wrapped block, 12 cm x 10 cm x 2.5 cm was found on top of a wardrobe in the spare bedroom. The block contained compressed white powder which was 22.4 per cent heroin. The bag in the rice container contained a substance which was 15.9 per cent heroin. The total weight of the block was 351.8 grams and the total weight of the powder in the rice container was 28 grams. In total a weight of 83 grams of pure heroin was found. At the time Officer Durre asked Mr Le about the substances and he denied any knowledge of them.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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