R v Duong - [2003] NSWCCA 55

CITATION: R v Duong [2003] NSWCCA 55 revised - 10/03/2003

HEARING DATE(S): 7 March 2003

JUDGMENT DATE:
7 March 2003

JUDGMENT OF: Giles JA at 1; Dunford J at 25; Smart AJ at 26

DECISION: Appeal dismissed.

CATCHWORDS: Criminal law - possession of heroin - whether necessary to direct jury that Crown had to negative the possibility that in the possession of someone else - direction depends on evidence and issue at trial - full directions on what was possession - including exclusivity and on burden and standard of proof - the specific direction not required - whether finding of guilt open to jury - finding open.

CASES CITED: M v The Queen, (1994) 181 CLR 207;
R v Anderson, CCA, 15 December 1983, unreported;
R v Bazley, CCA, 23 March 1989, unreported;
R v Filipetti, (1983) 13 A Crim R 335;
R v Sobolewski, CCA, 21 April 1998, unreported;
R v Trotter, [1999] NSWCCA 90.

PARTIES :
R v Thi Hong Hanh DUONG

FILE NUMBER(S): CCA 60258/02

COUNSEL: C V Jeffreys - Appellant
R Hulme SC - Crown

SOLICITORS: Jeffreys & Associates - Appellant
S E O'Connor - Crown

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 02/21/3071

LOWER COURT
JUDICIAL OFFICER : Morgan DCJ

CCA 60258/02
DC 01/21/3071

GILES JA
DUNFORD J
SMART AJ
Friday 7 March 2003

R v Thi Hong Hanh DUONG

Judgment

1 GILES JA: The appellant was found guilty on a charge that on 29 June 2000 at Hinchinbrook in New South Wales she -

“ … did supply a prohibited drug, namely 9.3 gms of heroin, in that she did have in her possession an amount of that drug which was not less than the trafficable quantity applicable for that drug.”

Drug Misuse and Trafficking Act

2 The appellant was sentenced to imprisonment for 3 years with a non-parole period of 15 months. This is an appeal against conviction. There was no application for leave to appeal against sentence

3 On 29 June 2000 a search warrant was executed at a house at Hinchinbrook. A red envelope containing heroin was found in a drawer in the tallboy in the appellant’s bedroom. The issue at the trial was whether the Crown had established that the heroin was in the appellant’s possession. The grounds of appeal were -

(a) that the trial judge’s directions on the element of possession were inadequate in that her Honour failed to direct the jury that the Crown had to negative the possibility that the drugs were in the possession of someone other than the appellant; and

4 The oral evidence in the Crown case was that of police officers who…

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 Duong

Details

AGLC: R v Duong [2003] NSWCCA 55
Case: [2003] NSWCCA 55
Decision Date: 7 March 2003

CaseChat Overview and Summary

The matter of R v Duong involved the defendant, Duong, who was charged with possession of a commercial quantity of heroin. The dispute centred around the interpretation and application of the law regarding the possession of a prohibited drug, specifically whether the Crown had to disprove the possibility that the drug was in the possession of someone else. The case was heard in a court of criminal jurisdiction in Australia.

The court was required to determine whether the trial judge was obligated to direct the jury that the Crown must exclude the possibility that the heroin was in the possession of another person. This decision hinged on the evidence presented and the issues that arose during the trial. Additionally, the court needed to assess whether the jury was properly directed on the concept of possession, including exclusivity, as well as the burden and standard of proof. The court examined whether the trial judge provided adequate directions on these matters.

Upon reviewing the evidence and the trial judge's directions, the court found that the trial judge had provided comprehensive directions on the concept of possession, including exclusivity, and on the burden and standard of proof. Therefore, the court held that the specific direction regarding the Crown's obligation to disprove the possibility of possession by another person was not required. The court further determined that the finding of guilt was open to the jury based on the evidence presented.

The final orders of the court were that the conviction of the defendant, Duong, was upheld. The court found that the jury had been adequately directed on the relevant legal principles, and the evidence supported a finding of guilt. Consequently, the appeal was dismissed, and the original conviction was maintained.

Orders