CITATION: R v Duong [2003] NSWCCA 55 revised - 10/03/2003 HEARING DATE(S): 7 March 2003 JUDGMENT DATE:
7 March 2003JUDGMENT 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 - CrownSOLICITORS: 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 01/21/3071Friday 7 March 2003GILES JA
DUNFORD J
SMART AJ
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.”
The offence was one of deemed supply by reason of possession of the heroin, see Drug Misuse and Trafficking Act 1985, ss 25(1) and 29.
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 -
(b) that there has been a miscarriage of justice in that it was not, upon the whole of the evidence, open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.
(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…
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- R v Duong [2003] NSWCCA 55
- Case
- [2003] NSWCCA 55
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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