R v Dung Chi Dang - [2004] VSCA 38

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 89 of 2003

THE QUEEN
	v.
DUNG CHI DANG

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JUDGES:	CHARLES, J.A., BONGIORNO and O'BRYAN, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 March 2004
DATE OF JUDGMENT:	25 March 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 38

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Criminal Law – Drug trafficking and possession – Whether convictions for trafficking against the weight of evidence or unsafe and unsatisfactory – Whether consciousness of guilt should have been left to jury – Whether common law meaning of possession open on the evidence – Possession pursuant to s.5 and s.73(2) Drugs, Poisons and Controlled Substances Act 1981 – Error in leaving lie as consciousness of guilt.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M.J. Croucher	Valos Black Solicitors

CHARLES, J.A.:

I have had the advantage of reading the judgment prepared by O’Bryan, A.J.A. and agree that the appeal must be allowed and the convictions set aside and a new trial ordered. I do so substantially for the reasons given by his Honour, with the addition of the following short comments.

The passage cited by O’Bryan, A.J.A. from the judgments in Edwards v. The Queen[1] shows that if the Crown seeks to rely upon a lie told by the accused to prove guilt, the lie must be precisely identified. In the present case the judge said in the charge that the prosecutor had put to the jury that the accused told lies to the court about “the location of the sandwich bags” and that “his reason for lying was his knowledge, consciousness of guilt of the crimes of which he is charged”. It does not appear from the transcript that any discussion took place between counsel and the judge during which any warning was given that the prosecutor would rely on any such lie as evidence of consciousness of guilt.
[1](1993) 178 C.L.R. 193 at 210-211.

The cross-examination upon which the prosecutor based his submission was set out in the charge. It is by no means clear that the accused lied in the passage quoted, as opposed to the prosecutor and the accused being somewhat at cross-purposes, as defence counsel submitted in taking an exception to the judge’s charge on consciousness of guilt. But if there was any lie, I think it was clearly not about the location of the sandwich bags, as was suggested, but rather as to the purpose for which the sandwich bags were used. The prosecutor, if correctly quoted, and the judge, were, I think, with respect, in error in that no lie was precisely identified at all. I agree, however, with O’Bryan, A.J.A. that if the accused lied, at most the telling of such a lie went to his credit, and could not be said to have amounted to an admission of his guilt. The prosecutor should not, in my view, have been permitted in this case to submit to the jury that any lie…

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 Dung Chi Dang

Details

AGLC: R v Dung Chi Dang [2004] VSCA 38
Case: [2004] VSCA 38
Decision Date: 25 March 2004

CaseChat Overview and Summary

In the matter of R v Dung Chi Dang, the respondent was convicted of drug trafficking and possession, charges contested by the accused. The case was heard in the Supreme Court of Queensland. The primary focus of the dispute was the sufficiency and reliability of the evidence presented against the respondent, particularly regarding the aspects of trafficking and possession, as well as the handling of the concept of consciousness of guilt by the trial judge.

The court was tasked with determining whether the convictions against the respondent were substantiated by the evidence or if they were unsafe and unsatisfactory. Additionally, the court examined whether the trial judge should have left the concept of consciousness of guilt to the jury and if the common law interpretation of possession was applicable given the evidence. The interpretation of the statutory provisions, specifically sections 5 and 73(2) of the Drugs, Poisons and Controlled Substances Act 1981, also formed part of the legal issues to be resolved.

The court found that the trial judge erred in allowing the concept of consciousness of guilt to be presented to the jury. This was identified as an improper direction, as it was not the role of the judge to instruct the jury on this concept. Furthermore, the court held that the convictions for trafficking were not supported by the evidence, deeming them unsafe and unsatisfactory. The court also clarified that the common law meaning of possession was not applicable to the facts of this case. Consequently, the convictions were quashed, and a retrial was ordered to ensure the respondent received a fair trial based on the correct application of the law.

The court ordered a retrial to be conducted, ensuring that the respondent would be judged based on the appropriate legal standards and evidence. The trial judge was directed to refrain from instructing the jury on consciousness of guilt and to correctly apply the statutory provisions in determining the charges against the respondent.

Orders