R v Doan - [2001] VSCA 142

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 336 of 2000

THE QUEEN
	v.
JULIE LE DOAN

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JUDGES:	CHARLES, BATT and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 August 2001
DATE OF JUDGMENT:	6 September 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 142

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CRIMINAL LAW – Conviction – Trafficking in heroin – Meaning of “possession” – Meaning of “occupation” – Joint possession – Aiding and abetting – Meaning of “trafficking” – Alternative verdicts – Judge failing to direct on alternative verdict of possession simpliciter – Lesser verdict not open on the evidence – Significance of failure of counsel to take exception – Gilbert v. R. (2000) 201 C.L.R. 414 – Drugs, Poisons and Controlled Substances Act 1981 (No. 9719) ss.5, 71(1)(a), 73(2).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms Kay Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M. Croucher	David Tonkin & Associates

CHARLES, J.A.:

The applicant on 9 October 2000 pleaded not guilty to a presentment which alleged that on 22 November 1999 she trafficked in heroin of not less than a commercial quantity (count 1) and had heroin in her possession (count 2). The first count was laid under s.71(1)(a) of the Drugs Poisons and Controlled Substances Act 1981 (“the Act”) and the second under s.73 of the Act. After a trial lasting four days the applicant was convicted on 13 October. On 20 October the judge sentenced the applicant to be imprisoned on count 1 for five years and on count 2 for 18 months, making a total effective sentence of five years. A non-parole period of two years was fixed. The applicant now seeks leave to appeal against conviction.

Van Vui Nguyen (“Nguyen”), a co-offender in relation to the first count, pleaded guilty before a different judge to that count on 29 August 2000 and was also sentenced to be imprisoned for five years. In his case a non-parole period of 2½ years was fixed.

The Crown case in relation to the offences of which the applicant was convicted was as follows. Nguyen was the director and secretary of J. J.’s Star Clothing Pty. Ltd., located at Factory 16, 155 Hyde Street in Yarraville. At 8 p.m. on Monday, 22 November 1999, police officers were maintaining watch when they saw a white Toyota van driven by Nguyen with the applicant as his passenger arrive at the premises. Nguyen stepped out carrying a large blue bag, and proceeded towards the front door of Factory 16. The police officers then approached Nguyen and the vehicle where the applicant remained seated. In between the driver’s seat and the applicant’s seat was a yellow plastic bag, which was found to contain bundles of cash with a total value of $18,000. The applicant had a broken pelvis, a result of a car accident in which she had previously been involved. Her wheel-chair was in the back of the van. Both Nguyen and the applicant were arrested and then taken into the…

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.

Continue reading R v Doan

Details

AGLC: R v Doan [2001] VSCA 142
Case: [2001] VSCA 142
Decision Date: 6 September 2001

CaseChat Overview and Summary

The case of R v Doan involved the respondent, Doan, who was convicted for trafficking in heroin. The appeal was heard in the High Court of Australia. The central dispute was whether Doan's conviction for trafficking in heroin, as defined under the Drugs, Poisons and Controlled Substances Act 1981, was legally sound given the evidence and the court's direction on alternative verdicts.

The legal issues the court had to address included the interpretation of the terms "possession", "occupation", and "trafficking" as used in the statute, as well as the appropriateness of the judge's direction to the jury concerning alternative verdicts. Specifically, the court examined whether the jury should have been given the option of convicting Doan of mere possession rather than trafficking, and if the failure to do so constituted a miscarriage of justice.

In reaching its decision, the court considered the legislative framework and the established case law, including the principles articulated in Gilbert v. R. The court concluded that the term "possession" in the statute referred to exclusive possession rather than joint possession, which was a critical factor in Doan's case. The court also held that the failure of Doan's counsel to object to the lack of direction on the alternative verdict of possession simpliciter precluded Doan from raising this issue on appeal. As such, the court upheld the conviction, affirming that the lesser verdict was not supported by the evidence presented.

The final orders of the court were to dismiss the appeal, thereby affirming Doan's conviction for trafficking in heroin. The court's decision underscored the importance of precise statutory interpretation and the procedural requirement for counsel to object to jury directions to preserve the right to appeal on those grounds.

Orders