R v Hoang - [2015] ACTSC 17

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Hoang
Citation:	[2015] ACTSC 17
Hearing Date:	17 December 2014
DecisionDate:	13 February 2015
Before:	Penfold J
Decision:	The application to exclude evidence is dismissed.
Category:	Procedural and other rulings
Catchwords:	CRIMINAL LAW – EVIDENCE – Judicial Discretion to admit or exclude Evidence – application to exclude evidence obtained against accused during cross-border controlled operation conducted under NSW legislation – accused not named in authority to conduct the cross-border controlled operation – whether evidence obtained improperly or in contravention of Australian law or as a consequence of impropriety or contravention of Australian law – effect on authority of failure to vary authority to add suspect identified during operation – whether accused could have been named in authority in respect of alleged offences entirely committed in ACT – authority not invalidated – scope of authority determined by reference to suspects named – whether authority authorised activities in which evidence was obtained against accused – authority did authorise those activities – no impropriety or contravention of Australian law found – application to exclude evidence dismissed.
Legislation Cited:	Crimes (Controlled Operations) Act 2008 (ACT), ss 7, 7(3), 7(4), 25, Dictionary Evidence Act 2011 (ACT), ss 138, 138(1), 138(3) Crimes Act 1900 (NSW) Pt 1A, ss 10A, 10B(3), 10C(1), 10C(2), 10C(2)(b) Law Enforcement (Controlled Operations) Act 1997 (NSW), s 3(1), Pt 2, ss 5(2A), 6, 8(2), 8(2)(a), 8(2)(b), 8(2)(c), 8(2)(d), 13, 13A, Pt 3, ss 16, 17, 19, Pt 3A, ss 20A, 20B, 20B(1), 20E, 20E(e), 20H, 20K, 20L Explanatory Statement for Crimes (Controlled Operations) Bill 2008 (ACT)
Parties:	The Queen (Crown) Nhan Van Hoang (Accused)
Representation:	Counsel Mr A Williamson (Crown) Mr L Fernandez (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused)
File Number:	SCC 22 of 2014

Background

Nhan Van Hoang has been charged in the ACT with one count of trafficking in heroin on 26 April 2013. The evidence against him will largely be given by a New South Wales Police Force undercover operative (a UCO) identified as Jason, who was present at a meeting in the ACT at which Edward Mapiva, using “buy money” provided by Jason, bought a quantity of heroin from Mr Hoang, and by ACT police who apprehended Mr Hoang as he drove away from the meeting and found most of the “buy money’ in his possession.

Mr Hoang seeks the exclusion from his trial of the evidence obtained as a result of the police operation. That evidence (the challenged evidence) will consist of:

(a)evidence from Jason and other police officers of the events of 26 April 2013 and of earlier occasions on which Mr Mapiva, using money provided by Jason, had obtained heroin from Mr Hoang and handed it over to Jason; and
(b)the “physical” evidence, being the drugs obtained and the “buy money” provided by Jason and recovered from Mr Hoang.

Mr Hoang’s application is made under s 138 of the Evidence Act 2011 (ACT), which is…

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 Hoang

Details

AGLC: R v Hoang [2015] ACTSC 17
Case: [2015] ACTSC 17
Decision Date: 13 February 2015

CaseChat Overview and Summary

The case of R v Hoang involved a dispute regarding the admissibility of evidence obtained during a cross-border police operation. The respondent, Hoang, sought to exclude the evidence obtained against him during this operation on the basis that it was obtained improperly or in contravention of Australian law. The police operation was conducted under the Law Enforcement (Controlled Operations) Act 1997 (NSW) and involved several incidents of drug trafficking between the ACT and NSW. The key legal issues revolved around whether the evidence was obtained improperly, whether the authority to conduct the operation was valid, and if there was any impropriety or contravention of Australian law.

The court examined the authority granted under the NSW Act and determined that while Hoang was not named in the authority, the authority did not become invalid as a result. The scope of the authority was assessed based on the suspects named within it, and the court found that the authority did cover the activities in which the evidence was obtained. The court also considered whether there was any impropriety or contravention of Australian law and concluded that none was found. The application to exclude the evidence was dismissed as the authority was deemed valid and the activities were authorised under the NSW Act.

The reasoning of the court was grounded in the statutory framework provided by the NSW Act, the nature of the controlled operation, and the specifics of the evidence obtained. The court held that the authority to conduct the cross-border operation was valid, and the evidence obtained was admissible in court. The court further determined that there was no impropriety or contravention of Australian law in the manner in which the evidence was obtained.

The final orders of the court were that the application to exclude the evidence was dismissed, allowing the evidence to be used in the trial against Hoang. The court's decision upheld the admissibility of the evidence obtained during the cross-border police operation.

Orders

Orders of the court

The application to exclude evidence is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Hoang seeks the exclusion from his trial of the evidence obtained as a result of the police operation. That evidence (the challenged evidence) will consist of: Mr Hoang’s application is made under s 138 of the Evidence Act 2011 (ACT), which is relevantly as follows: The police operation was conducted in reliance on an authority to conduct a cross-border operation (the Authority) obtained by officers of the NSW Police Force under Part 3A of the Law Enforcement (Controlled Operations) Act 1997 (NSW) (the NSW Act). The operation involved several incidents over nearly two months in which Mr Mapeva, at Jason’s request, had obtained heroin in the ACT from Mr Hoang, using money provided by Jason, and subsequently handed it over to Jason in NSW. On the last occasion, Mr Hoang was apprehended by ACT police who found him in possession of marked notes that had been part of the “buy money”, and Mr Mapiva was stopped by NSW police who seized the heroin before it could be handed over to Jason. Mr Hoang’s argument in support of the exclusion of the challenged evidence was in general terms as follows: The specific argument that Jason’s activities were unauthorised and therefore improper or in contravention of an Australian law took some time to emerge, and is somewhat more complicated; it is most conveniently explained against the background of the legal framework in which the controlled operation was conducted and the particular facts of this case. The NSW Act is described as an Act: It provides for the authorisation of controlled operations that are to be conducted in NSW. It also contains provisions for the authorisation of cross-border controlled operations which build on the provisions relating to operations taking place entirely within NSW. A controlled operation is defined at s 3(1) of the NSW Act as an operation conducted for the purpose of:(a)obtaining evidence of criminal activity or corrupt conduct, or(b)arresting a person involved in criminal activity or corrupt conduct, or(c)frustrating criminal activity or corrupt conduct, or(d)carrying out an activity that is reasonably necessary to facilitate the achievement of any purpose referred to in paragraph (a), (b) or (c),being an operation that involves, or may involve, a controlled activity. Under Part 2 of the NSW Act, an authority to conduct a controlled operation is available to officers of several different law enforcement agencies. Relevantly to the current case, the Commissioner of Police of the NSW Police Force may authorise an officer or employee of the Police Force, or a person seconded to that Police Force, to conduct a controlled operation on behalf of the Police Force (s 5). An application to the Commissioner for such an authority must under s 5(2A) provide particulars including, relevantly:(a)a plan of the proposed operation;(b)the nature of the criminal activity or corrupt conduct in respect of which the proposed operation is to be conducted; and(c)the nature of the controlled activity in respect of which an authority is sought.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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