R v Do

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Do [2004] NSWCCA 137

FILE NUMBER(S):
60471/03

HEARING DATE(S): 05/04/2004

JUDGMENT DATE: 13/05/2004

PARTIES:
Crown
Thi Bach Tuyet Do

JUDGMENT OF: Sully J Hidden J Hislop J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/1173

LOWER COURT JUDICIAL OFFICER: JX Gibson DCJ

COUNSEL:
Ms M Cinque - Commonwealth Crown
S Odgers SC - Appellant

SOLICITORS:
Commonwealth Director of Public Prosecutions - Crown
The Director, Legal Aid Commission of NSW - Appellant

CATCHWORDS:
CRIMINAL LAW: Appeal against conviction - importing heroin - admitted lies by appellant to customs officers and police - not relied upon as evidence of consciousness of guilt - whether trial judge's directions appropriate.
Evidence of good character - whether relevant to credibility of appellant's account to police in a recorded interview.

LEGISLATION CITED:

DECISION:
Appeal allowed, new trial ordered.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60471/03
SULLY J
HIDDEN J
HISLOP J
Thursday, 13 May, 2004

REGINA v Thi Bach Tuyet DO

Judgment

SULLY J: I agree with the orders proposed and with the reasons given.
HIDDEN J: The appellant, Thi Bach Tuyet Do, was tried in the District Court upon a charge of importing into Australia a trafficable quantity of heroin. She was found guilty and sentenced to a term of imprisonment. She appeals against conviction only.
The evidence
The evidence in the Crown case was not in dispute. The appellant travelled from Australia to Vietnam on 26 September 2002, returning to this country on 20 October. Upon her arrival at Sydney Airport, customs officers found heroin concealed in her shoes. Interviewed with the aid of a Vietnamese interpreter, she told the officers that she had bought the shoes at a market in Vietnam and did not know that there was anything secreted in them. Australian Federal Police officers came to the airport and she gave them the same account, saying that she had travelled alone and no-one had asked her to bring the shoes into the country. In a later recorded interview at AFP headquarters, she gave quite a detailed account of the circumstances in which she had to discard the shoes which she had been wearing and of her purchase of the new shoes.
However, the appellant took part in a further recorded interview on 4 February 2003, in which she retracted that account. Put shortly, she said that about a year earlier she had borrowed some money from a woman named Huang, whom she had met while gambling at the casino in Sydney. With interest, that debt had grown to a considerable sum, and some days before her trip to Vietnam Ms Huang had threatened her life if she did not repay it. She said that Ms Huang introduced her to a male associate, and arrangements were made for her to travel to Vietnam to “do something” for them, in return for which she would be paid some money and her debt would be discharged.
She went on to say that Ms Huang made the travel arrangements and she was accompanied on the journey by a woman named Mai, an associate of Ms Huang. In Vietnam they were given three dresses and two pairs of shoes, and the appellant was instructed to take them back to Australia and give them to Ms Huang’s brother. Mai wore one of the pairs of shoes, and she told the appellant to discard her own shoes and wear the other pair. The appellant said that she did not know that anything was concealed in those shoes. There were diamantes sewn into the dresses, and she thought that the enterprise was the smuggling of diamonds into Australia.
The appellant also said that, if anything went wrong, she had been instructed to say that she had bought the shoes and dresses at a market and had been assured that she would be looked after. She was also told that her life would be in danger if she implicated any of those involved in the enterprise.
The appellant did not give evidence at the trial, but relied upon her account to police in the second recorded interview as her case. The only issue at the trial was the mental element of the offence, that is, whether the appellant knew that she was, or was likely to be, carrying heroin into Australia: Pereria v Director of Public Prosecutions (1988) 63 ALJR 1.
The appeal
Neither the Crown prosecutor nor senior counsel for the appellant in this Court had appeared at the trial. Two grounds of appeal were argued, although reliance was placed primarily upon one of them. This ground arose from the trial judge’s directions to the jury about the appellant’s admitted lies to customs officers and police when she was first interviewed.
The Crown prosecutor at the trial did not rely upon those lies as evidence of a consciousness of guilt on the part of the appellant of the crime charged. His only argument had been that they bore upon the credibility of her account to police in the second recorded interview. However, in summing up his Honour said:
The Crown has suggested to you that the accused has been telling lies concerning these matters. Of course, that is a question of fact for you to decide, but indeed, in relation to the first interview, it is not disputed that she was telling lies. If you find that she has been lying, it does not necessarily mean that she is guilty. She is not charged with lies, she is charged with the offence of importation. People can tell lies for a number of different reasons, fear of being wrongly convicted, being one of them, I suppose. The Crown still bears the onus of proving the case against the accused.
However, if you are satisfied that the accused was telling lies, one effect it may have is to make it easier for you to accept the evidence of the Crown witnesses, and the inference which the Crown says you should draw from that evidence, whether it does have that effect on you, is entirely a matter for you.
Later, in the course of directing the jury about the mental element of the offence, his Honour said:
In the present case the Crown sets out proving the intention in this way, as I understand it. They say, firstly, she had actual knowledge of the importation and in relation to that, as I understand it, they say when she was arrested or spoken to at the airport she in fact had brought the heroin into the country. That is the first thing, she brought it. It was not in somebody else’s luggage, it was she who brought it in attached to her feet, she walked it in, and they then say that if you look at the reasons that she gave at the time she lied and she lied deliberately about that. She told a story that was untrue and fanciful and just would not stand up to examination, and the reason for doing that, they would suggest, is because she knew she had it in her shoes, that material being a narcotic substance.
Counsel for the accused says: well, she knew she was bringing something in but she did not think it was narcotics. She thought it was diamonds. That is not what she said originally. What she said was she did not know and only came upon these shoes when something happened, and you have got a transcript that it only happened when she was coming out of the hotel and the strap broke on her shoe and she needed to get another pair. They sold her the pair containing 600 grams of heroin. The Crown said you would not accept that as anything other than lies and that you would be satisfied of itself in relation to this charge that she knew and therefore intended to bring into the country the prohibited import, namely, the narcotics.
These directions must have conveyed to the jury that they could use the evidence of the appellant’s lies to infer her knowledge of the presence of the heroin in the shoes, which was the central issue in the trial. Clearly, then, the jury were invited to treat the lies as evidence of consciousness of guilt: Edwards v The Queen (1993) 178 CLR 193. As such, the directions failed to meet the now familiar requirements spelled out in the joint judgment in Edwards at 210-11.
His Honour did not identify with precision the relevant lies, although they may well have been apparent to the jury. He did not direct the jury that they must be satisfied that the appellant lied because she knew that the truth would implicate her in the offence charged. He touched upon the proposition that a person may lie for reasons consistent with innocence of the crime charged. However, his brief reference to the appellant’s asserted belief that she was involved in the smuggling of diamonds would not have conveyed to the jury that her account in the second recorded interview provided a possible explanation for her lies consistent with innocence: that she believed she was involved in an illegal activity, albeit different from the offence charged, and that she feared reprisals if she revealed the true circumstances, thereby implicating others.
More importantly, however, the case was not one in which an Edwards direction was called for at all. As I have said, the Crown prosecutor relied upon the lies as bearing upon the credibility of the appellant’s account in the second interview, not as evidence of consciousness of guilt. The importance of the distinction was emphasised in the joint judgment in Zoneff v The Queen (2000) 200 CLR 234 at [15] ff. In my view, all that was appropriate in the present case was a direction along the lines suggested by their Honours at [23], explaining to the jury how the Crown relied upon the lies, leaving it to them to determine their significance in relation to the central issue in the case, and cautioning them against reasoning that the appellant was guilty simply because she had lied. A recent examination of that approach, together with helpful references to authority, is to be found in the judgment of Wood CJ at CL in R v Ray [2003] NSW CCA 227 at [72] ff.
No redirection about this matter was sought by counsel for the appellant at the trial but, given its significance, I would not refuse leave to argue this ground. The Crown prosecutor in this Court properly and fairly acknowledged that it would not be appropriate to apply the proviso. The ground is made out and there must be a new trial.
However, brief mention should be made of the other ground which was argued. The appellant raised her character at the trial, her counsel eliciting in evidence from a federal police officer that she had no previous convictions. In his final address to the jury, counsel told them that they could consider that evidence of good character on the question whether she knew the heroin was in her shoes and also “in assessing her credibility.” The trial judge interrupted counsel at that point, saying that the evidence could not be relied upon in support of the appellant’s credibility as she had not given evidence at the trial. His Honour later affirmed that view in the absence of the jury.
As the Crown prosecutor in this Court conceded, this was in error. In R v Murphy (1985) 4 NSWLR 42 at 54, after a review of authorities dealing with evidence of good character, this Court said:
This line of authority shows that, whilst the primary significance of evidence of good character is upon the unlikelihood of guilt, there is a corollary to the effect that evidence of good character can be used with reference to credibility of the accused in his denial of the charge, and hence the unlikelihood of his guilt.
It matters not whether the accused’s denial of the charge is before the jury by way of his or her evidence at the trial or in some other form, such as a recorded interview with police. Of course, whether the jury should be given a direction about character evidence and, if so, what the terms of that direction should be are matters for the trial judge to determine in the light of the issues in the particular case: Melbourne v The Queen (1999) 198 CLR 1.
Senior counsel for the appellant acknowledged that, in the circumstances of this case, this ground alone would not be sufficient to warrant setting aside the conviction. As I have said, it is the other ground which determines the outcome of the appeal. I would allow the appeal and order a new trial.
HISLOP J: I agree with Hidden J.

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LAST UPDATED: 17/05/2004

[2004] NSWCCA 137

13 May 2004