R v Do - [2004] NSWCCA 137

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…

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: [2004] NSWCCA 137
Decision Date: 13 May 2004

CaseChat Overview and Summary

The appellant, Thi Bach Tuyet Do, appealed against her conviction for importing heroin into Australia. The District Court found her guilty and imposed a term of imprisonment. The central issue in the appeal was whether the trial judge's directions to the jury were appropriate, particularly in relation to the appellant's admissions to customs officers and police, which were not relied upon as evidence of her consciousness of guilt. Another issue was whether evidence of the appellant's good character was relevant to her credibility in the recorded police interview.

The court considered the nature of the appellant's admissions and the trial judge's handling of these statements. The appellant had initially lied to customs officers and police but later provided a detailed account to police during a recorded interview. The trial judge directed the jury that the appellant's admissions were not to be considered as evidence of guilt but could be considered for the purpose of assessing her credibility. The court found that the trial judge's directions were appropriate and did not lead to a miscarriage of justice. The judge's approach correctly focused the jury's attention on the appellant's knowledge of the heroin at the time of importation, rather than allowing the admissions to be used as substantive evidence of guilt.

The court also examined the relevance of the appellant's good character evidence. It was noted that such evidence is not typically admissible to prove honesty or reliability in criminal cases. The court concluded that the trial judge correctly ruled that the evidence of good character was not relevant to the appellant's credibility in the recorded interview. The appellant's credibility was for the jury to assess based on the content and consistency of her statements.

The appeal was dismissed, and the conviction and sentence of the District Court were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

SULLY J

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Ratio Decidendi

Legal Principle Established

Established by: SULLY J

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