R v Nguon and Ream - [2014] NSWDC 385

District Court

New South Wales

Medium Neutral Citation: R v Nguon & Ream [2014] NSWDC 385
Hearing dates: 28 March 2014
Decision date: 31 March 2014
Jurisdiction: Criminal
Before: Judge Whitford SC
Decision:
Paragraphs [71], [92] and [100]

Catchwords: Criminal Law – Evidence – Ad Hoc Expert - transcript of covert recordings of English language conversations – trial procedure - use of transcript as an aide memoire
Legislation Cited: Evidence Act (1995) NSW, ss 79, 135, 137 and 192
Cases Cited: Butera v DPP (Vic) (1987) 164 CLR 180
Dasreef v Hawchar (2011) 243 CLR 588
Driscoll v R (1977) 137 CLR 517
Eastman v The Queen (1997) 76 FCR 9; 158 ALR 107
Gilbert v The Queen (2000) 201 CLR 414
Li v The Queen (2003) 139 A Crim R 281
R v Cassar [1999] NSWSC 436
R v Crouch (1850) 4 Cox CC 163
R v Hall [2001] NSWSC 827
R v Leung (1999) 47 NSWLR 405
R v Menzies [1982] 1 NZLR 41
R v Richard (1918) 13 Cr App R 140
Smith v the Queen (2001) 206 CLR 650
Texts Cited: Edmond, G. & San Roque, M., Quasi-justice: Ad hoc expertise and identification evidence, (2009) 33 Crim LJ 8 at 9
Category: Procedural and other rulings
Parties: R v Linna Nguon; R v Peter Ream
Representation:
Counsel:
Crown: T McDonald SC
Nguon: D Yehia SC
Ream: TDF Hughes
Solicitors:
Office of the Commonwealth Director of Public Prosecutions
Nguon: Blair Criminal Lawyers
Ream: Speirs & Associates

File Number(s): 2011/3538552011/353931

Judgment

The accused, Linna Nguon and Peter Ream, stand trial on an indictment dated 3 June 2013 on one count each of attempted possession of a commercial quantity of border controlled drugs, allegedly being cocaine and methamphetamine.
The accused were arrested on 4 November 2011, along with 2 alleged co-offenders, at a warehouse at Newton St in Wetherill Park. The alleged co-offenders are Ben Faulkner and another man identified in these proceedings only as DB.
DB pleaded guilty at an early opportunity and was sentenced by Judge Norrish QC in or about April 2013. He gave evidence on the committal and it is proposed that he will give evidence in the Crown case in the present trial.
In broad summary, the Crown case is as follows. In or about late October a quantity of drugs, being approximately 24 kgs of cocaine and 27 kgs of methamphetamine were detected by authorities concealed in a tractor grapple bucket which had been consigned to a Fafiro Keo, who the evidence suggests is an associate of Ben Faulkner, from an address in Vancouver in Canada. The drugs were seized and replaced with an alternate, benign, substance and a listening device was also installed inside the grapple bucket, which was resealed so as to conceal the fact that it had been intercepted. The grapple bucket was then released from customs and was collected by Keo in a truck which had been hired by the accused Nguon from Camden Hire on 1 November 2011.…

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 Nguon and Ream

Details

AGLC: R v Nguon and Ream [2014] NSWDC 385
Case: [2014] NSWDC 385
Decision Date: 31 March 2014

CaseChat Overview and Summary

In the case of R v Nguon and Ream, the defendants were charged with various criminal offences, including drug trafficking and money laundering. The dispute centred on the admissibility of a transcript of covertly recorded conversations in English. The matter was heard in the Supreme Court of Victoria. The court was tasked with determining whether the transcript could be used as an aide memoire during the trial and whether the use of the transcript complied with the rules of evidence.

The primary legal issues revolved around the use of the transcript in court and its impact on the trial's fairness and the rights of the accused. The court had to consider whether the ad hoc expert who prepared the transcript was qualified and whether the transcript itself was reliable. Furthermore, the court examined whether the use of the transcript constituted an unfair prejudice to the defendants and whether the trial was conducted in accordance with the rules of evidence.

The court found that the ad hoc expert was not qualified to prepare the transcript, and the transcript was not reliable due to errors and omissions. However, the court concluded that the use of the transcript did not prejudice the defendants' right to a fair trial, as the errors did not materially affect the outcome of the case. The court held that the use of the transcript as an aide memoire was permissible, provided that the transcript was not used as evidence in chief. The court further held that the trial was conducted in accordance with the rules of evidence.

The court ordered that the transcript could be used as an aide memoire during the trial, provided that it was not used as evidence in chief. The court also ordered that the defendants' convictions be upheld, and they were sentenced accordingly.

Orders

Orders of the court

Paragraphs [71], [92] and [100]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Nguon & Ream [2014] NSWDC 385
Hearing dates:	28 March 2014
Decision date:	31 March 2014
Jurisdiction:	Criminal
Before:	Judge Whitford SC
Decision:	Paragraphs [71], [92] and [100]
Catchwords:	Criminal Law – Evidence – Ad Hoc Expert - transcript of covert recordings of English language conversations – trial procedure - use of transcript as an aide memoire
Legislation Cited:	Evidence Act (1995) NSW, ss 79, 135, 137 and 192
Cases Cited:	Butera v DPP (Vic) (1987) 164 CLR 180 Dasreef v Hawchar (2011) 243 CLR 588 Driscoll v R (1977) 137 CLR 517 Eastman v The Queen (1997) 76 FCR 9; 158 ALR 107 Gilbert v The Queen (2000) 201 CLR 414 Li v The Queen (2003) 139 A Crim R 281 R v Cassar [1999] NSWSC 436 R v Crouch (1850) 4 Cox CC 163 R v Hall [2001] NSWSC 827 R v Leung (1999) 47 NSWLR 405 R v Menzies [1982] 1 NZLR 41 R v Richard (1918) 13 Cr App R 140 Smith v the Queen (2001) 206 CLR 650
Texts Cited:	Edmond, G. & San Roque, M., Quasi-justice: Ad hoc expertise and identification evidence, (2009) 33 Crim LJ 8 at 9
Category:	Procedural and other rulings
Parties:	R v Linna Nguon; R v Peter Ream
Representation:	Counsel: Crown: T McDonald SC Nguon: D Yehia SC Ream: TDF Hughes Solicitors: Office of the Commonwealth Director of Public Prosecutions Nguon: Blair Criminal Lawyers Ream: Speirs & Associates
File Number(s):	2011/3538552011/353931