R v Jan Ha Le Trinh - [1998] VSCA 137

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 179 of 1997

THE QUEEN

JAN HA LE TRINH

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JUDGES:	WINNEKE, P., CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 November 1998
DATE OF JUDGMENT:	17 December 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 137

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Criminal law - “Knowingly concerned in the importation of heroin” - Applicant giving evidence that she knew she was involved in illegal activity but contending that she believed she was involved in the activity of “money laundering” and not importation of heroin - Whether judge entitled to direct the jury that the explanation if found to be false, constituted a consciousness of guilt - Whether directions in accordance with Edwards v. R. (1993) 178 C.L.R. 193 were appropriate in the circumstances - Application for leave to appeal against conviction dismissed.

Sentence - Sentence imposed of 12 years with a minimum of 10 years disproportionate to criminality of applicant - Application for leave to appeal against sentence allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. B. Young	Office of the Director of Public Prosecutions (Cwlth)
For the Applicant	Mr. P.F. Tehan Q.C. and Mr. S. Ginsbourg	Haines & Polites

WINNEKE, P.:

At about 11 a.m. on Friday, 8 December 1995, a package was delivered to 83 Springvale Road, Springvale in Melbourne. It was delivered by a company called Federal Express Courier Services which had received the package for carriage in Thailand. It was air-freighted from Thailand to Melbourne, via Singapore and Sydney. The package was accepted at 83 Springvale Road by a man named Simon Le Duc, a Vietnamese born French national who had been sent to Melbourne on 18 September 1995 by his employer, Francois Vann La (otherwise known as Ah Kiet) specifically to wait for and take delivery of it. The package contained 12 packets of heroin, the total quantity of which was later measured to be about 3 kilograms pure. The package had been assembled and consigned by a man called Ken Ha, a Vietnamese born Australian who had been living in Thailand since February 1995. Unbeknown to Le Duc, the premises in Springvale Road had been under surveillance by the Australian Federal Police for some time prior to the delivery of the package. Evidence collected by the police made it clear that Vann La and Ken Ha had been in contact with one another and the applicant before the delivery was made. Vann La and Ken Ha are the brother-in-law and brother, respectively, of the applicant who was and, for some time had been, the proprietor of a clothing business in Alphington. Telephone conversations, lawfully intercepted by the federal police in the months preceding the delivery, demonstrated that the applicant had been in regular contact with her brother, Ken Ha, and, less regularly, in contact with Le Duc and Vann La.

In the early evening of 8 December 1995 - the date of the delivery - Le Duc was arrested. He was found in possession of…

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

Case: [1998] VSCA 137
Decision Date: 17 December 1998

CaseChat Overview and Summary

In the matter of R v Jan Ha Le Trinh, the applicant appealed both her conviction and sentence following her involvement in the importation of heroin. The High Court of Australia was tasked with considering the propriety of the directions given by the trial judge to the jury and the proportionality of the sentence imposed. The central legal issue revolved around whether the trial judge was correct in directing the jury that if the applicant's explanation regarding her belief in participating in money laundering, rather than the importation of heroin, was found to be false, it could constitute a consciousness of guilt. Additionally, the court had to determine whether the directions provided aligned with the principles set out in Edwards v. R. Furthermore, the proportionality of the 12-year sentence with a minimum of 10 years was examined in light of the applicant's criminal conduct.

The court found that the trial judge's direction to the jury was permissible as it allowed for an inference of guilt if the jury determined the applicant's explanation to be false. This approach was consistent with the legal precedent established in Edwards v. R, where it was held that such directions could be appropriate when the accused presents an explanation that, if disbelieved, may imply guilt. The court upheld that the judge's directions did not misdirect the jury but rather provided a lawful framework for considering the applicant's defence. Regarding the sentence, the court held that the 12-year term with a minimum of 10 years was disproportionate to the nature and circumstances of the applicant's crime. This conclusion led to the allowance of the appeal against the sentence, while the conviction remained unchallenged.

The High Court dismissed the application for leave to appeal against the conviction, affirming that the trial judge's directions were correctly aligned with established legal principles. However, the court allowed the application for leave to appeal against the sentence, finding it to be excessively severe given the specifics of the case. The court emphasised the need for sentencing to reflect a fair and balanced assessment of the offender's culpability and the gravity of the offence committed.

Orders