Court of Criminal Appeal: Doyle CJ, Prior and Olsson JJ
1................ DOYLE CJ....... Ms GNN was tried before a jury on two counts of possessing heroin for sale, contrary to s 32(1)(b) of the Controlled Substances Act 1984 (SA). The jury found her not guilty on the first count, but found her guilty on the second count. She appeals against that conviction.
Facts
Ms GNN was the occupier of a house at Kilburn in Adelaide. Her young son and daughter lived there with her. On 26 June 1999 the police had the house under observation. The police suspected that a consignment of heroin was being brought from Sydney to the house. They suspected that Ms GNN was involved in dealing with heroin.
At about 7.15pm on 26 June a man, who could not be confidently identified, came out of the house and drove a Nissan motor car from the driveway of the house into the street. The man returned to the house.
At about 7.47pm a Toyota Corolla motor car drove into the driveway of the house. Two men were in the car.
At about 8.00pm Ms GNN and a man, Mr SN, left the house and went towards the Nissan parked in the street. They were stopped by the police.
The police then entered the house. They found Van Diep Pham and Mr THN in the lounge. A third man, Phong Thanh Nguyen, was showering himself in the bathroom of the house. The evidence established that these men had come from Sydney. They were not normally residents at the house. Nor was Mr SN, who lived at another address in Adelaide.
The evidence was that Mr THN had arrived from Sydney at the house the previous day. The evidence indicated that he and Ms GNN were in a relationship. They were sharing the bedroom at the house, and various belongings of Mr THN were found in the bedroom. Mr SN and Mr THN were brothers.
The evidence suggested that Phong Thanh Nguyen had driven the Toyota from Sydney, departing from there on Friday 24 June or Saturday 25 June.
The police searched the house and the cars.
They found heroin in the kitchen. This heroin was the subject of Count 2. In a flower pot on top of the fridge they found two small packages wrapped in plastic and secured with rubber bands. The two small packages were wrapped up as one. One of the packages was wrapped in advertising material that related to a business that operated only in South Australia. There was nothing of note about the other wrapping. Each package contained a block of compressed powder. One package weighed 6.95 grams, of which 4.91 grams was heroin. The other weighed 2.49 grams, of which 1.48 grams was heroin. Numerous rubber bands were found in the kitchen and in the bedroom.
Also in the kitchen, and also the subject of Count 2, was some heroin found in a video tape box.…
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
AGLC
R v GNN [2000] SASC 447
Case
[2000] SASC 447
Decision Date
CaseChat Overview and Summary
The case of R v GNN involved the appeal of Ms GNN against her conviction on a charge of possessing heroin for sale. The conviction was returned by a jury after a trial in the District Court of South Australia. The appeal was heard by Doyle CJ, Prior and Olsson JJ of the Court of Criminal Appeal. The primary issues in the appeal were whether the trial judge's directions to the jury about the concept of possession were adequate, whether the indictment was bad for latent duplicity or uncertainty, whether the trial judge's direction about the use of the intercepted telephone conversations was erroneous, and whether the evidence was capable of satisfying the jury of guilt beyond reasonable doubt. The Court found that the trial judge's directions to the jury about possession were inadequate because they did not sufficiently explain the practical application of the concept of control in the circumstances of the case. The Court also found that although Count 2 of the indictment was arguably bad for latent duplicity or uncertainty, there was no risk of a miscarriage of justice as the case was presented to the jury on the basis that Count 2 related to all of the heroin found in the kitchen. The Court further found that the trial judge's direction about the use of the intercepted telephone conversations was not erroneous, and that the evidence was capable of satisfying the jury of guilt beyond reasonable doubt. Consequently, the Court allowed the appeal, set aside the conviction and ordered a retrial on Count 2.