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R v Lao and Nguyen

R v Lao and Nguyen

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Case Copied 2 October 2002 84 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 202 of 2001

THE QUEEN
	v.
VINH LAC LAO THE QUEEN v. THANH HUNG NGUYEN
	No. 213 of 2001

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JUDGES:	BUCHANAN, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22-24 July 2002
DATE OF JUDGMENT:	2 October 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 157	1^st Revision: 7 October 2002

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CRIMINAL LAW - Drug trafficking - Two accused named in one count - One joint enterprise - Buyer and seller dealing with same principal - Interdependent transactions - Verdicts not unsafe or unsatisfactory - Admission of evidence of acts and declarations of others - Independent evidence of pre-concert - Unbalanced charge - Jones v. Dunkel direction - Whether correct - Search warrant - Video film made during execution of warrant - Later use of film by prosecution at trial.

Crimes Act 1964 (Cth), s.3J.

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APPEARANCES:

Counsel

Solicitors

For the Crown

Mr B.M. Young

DPP (Commonwealth)

For the Applicant Lao

For the Applicant Nguyen

Mr S.A. Shirrefs

Mr O.P. Holdenson, Q.C.

Theo Magazis & Assoc.

Theo Magazis & Assoc

BUCHANAN, J.A.

On 2 May 2001 Vinh Lac Lao (“Lao”) and Thanh Hung Nguyen (“Nguyen”) were arraigned in the County Court and pleaded not guilty to a presentment containing one count alleging that between 7 April 1999 and 3 August 1999 Lao and Nguyen with Ko Kon Tong (“Tong”) and others trafficked in heroin.

After a trial lasting nearly three months the accused were found guilty. Pleas were heard by the trial judge, who sentenced Lao to a term of 21 years' imprisonment with a non-parole period of 17 years and Nguyen to a term of 12 years' imprisonment with a non-parole period of nine years. Lao and Nguyen seek leave to appeal against their convictions and Lao seeks leave to appeal against his sentence. The Director of Public Prosecutions has appealed against the sentence imposed upon Nguyen.

The Crown case consisted mainly of transcripts of intercepted telephone conversations and recorded face-to-face conversations in Cantonese and Vietnamese concerning three consignments of heroin to Melbourne, one in May 1999, another in June 1999 and a third in August 1999. The first two consignments were distributed; the third was intercepted and the applicants and their associates were arrested.

According to the Crown, Tong, assisted by his acolytes Le Phan Vuong (“Vuong”) and Dat Thinh Ong (“Ong”), acted as the middleman. Based at the hotel at Crown Casino Tong acquired heroin from Lao and onsold it to Nguyen. Vuong and Ong were a de facto couple living in Melbourne who assisted Tong in soliciting funds, seeking wholesale purchasers of the heroin and arranging the collection and distribution of the heroin.

Lao, a Cantonese speaking resident of Hong Kong, obtained from mainland China the heroin which he supplied to Tong. Lao dealt directly with the persons who received the first and third shipments from Sydney and accompanied the heroin when it was brought to Melbourne. Lao monitored the delivery of the second consignment…

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: [2002] VSCA 157
Decision Date: 2 October 2002

CaseChat Overview and Summary

In the matter of R v Lao and Nguyen, the Federal Court of Australia was tasked with addressing a complex drug trafficking case. The defendants, Lao and Nguyen, were jointly charged with drug trafficking offences under the Crimes Act 1964 (Cth). The central dispute revolved around whether the joint charge against the two defendants was valid, the admissibility of evidence obtained during a search, and the propriety of a video recording made during the execution of a search warrant. The court was required to determine these issues to ascertain the guilt or innocence of the accused.

The legal issues included the validity of a joint charge against two defendants who were part of the same joint enterprise, the admissibility of evidence obtained from a search warrant, and whether the video recording made during the execution of the warrant could be used by the prosecution. The court had to consider whether the charge against both defendants was balanced and whether the evidence obtained and the video recording were admissible under the relevant laws. Additionally, the court examined whether the direction given to the jury by the trial judge was appropriate in the circumstances.

In its decision, the court found that the joint charge against Lao and Nguyen was valid, as they were part of the same joint enterprise. The evidence obtained from the search and the video recording were deemed admissible, as they were obtained lawfully and were relevant to the case. The court held that the trial judge's direction to the jury was appropriate and that the verdicts were not unsafe or unsatisfactory. Consequently, the court upheld the convictions of Lao and Nguyen.

The court further determined that the jury's verdicts were not unsafe or unsatisfactory and that the evidence obtained and the video recording were properly admitted. The convictions of Lao and Nguyen were therefore upheld, and the appeals were dismissed.

Orders