R v Nguyen

Case [2010] SASCFC 23

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v NGUYEN

[2010] SASCFC 23

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice White and The Honourable Justice Kelly)

18 August 2010

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - WHAT CONSTITUTES

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED

Criminal law - appeal against conviction - appellant convicted by jury of two counts of trafficking in a controlled drug - where trafficable quantities of drugs found in appellant's house - where circumstantial evidence suggested appellant dealing in drugs - where appellant alleged drugs belonged to another who was in the house at the time of their finding - whether trial Judge's directions inadequate.

Held (per Vanstone and Kelly JJ, White J dissenting): appeal dismissed.

(per Vanstone and Kelly JJ): trial Judge's directions on the issue of possession adequate - trial Judge did not invite the jury to infer possession from agreement with another to sell - agreement to sell was one realistic scenario for the jury's consideration.

(per White J dissenting): although not necessary to direct that joint possession can occur when acting in concert, trial Judge's directions did not explain the concept of joint possession at all - trial Judge conflated notions of joint possession with joint intention to sell - link to intention to sell drugs may have confused jury.

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

Whether jury verdicts unreasonable.

Held (per Vanstone and Kelly JJ, White J not deciding): permission to appeal refused - verdict of jury not unreasonable - jury entitled to conclude on the entirety of the evidence that appellant was selling drugs from her house either on her own account or with another.

STATUTES - SUBORDINATE LEGISLATION - VALIDITY

Whether regulations prescribing trafficable quantity invalid for unreasonableness.

Held (per White J, Vanstone and Kelly JJ agreeing): regulations prescribing trafficable quantity not invalid - stringent test to be applied - no lack of proportionality to enabling legislation demonstrated - regulations not unreasonable.

Controlled Substances Act 1984 (SA) s 4, s 32 and s 63; Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA) s 4 and s 14; Controlled Substances (Controlled Drugs, Precursors and Cannabis) Amendment Act 2008 (SA) s 4(3); Controlled Substances (General) Regulations 2000 (SA) reg 6, Sch 1 and Sch 2; Narcotic and Psychotropic Drugs Act 1934 (SA) s 5; Controlled Substances (Prohibited Substances) Regulations 2000 (SA) reg 6 and Sch 2; Controlled Substances (Poisons) Regulations 1996 (SA) reg 31K and Sch KA, referred to.
Dib & Dib v The Queen (1991) 52 A Crim R 64; State of South Australia v Tanner (1988) 166 CLR 161; Williams v Melbourne Corporation (1933) 49 CLR 142; Minister for Resources v Dover Fisheries (1993) 116 ALR 54; Mixnam's Properties Ltd v Chertsey…

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R v Nguyen [2010] SASCFC 23
Case
[2010] SASCFC 23
Decision Date

CaseChat Overview and Summary

The appellant, R v Nguyen, was convicted by a jury of two counts of trafficking in a controlled drug, specifically heroin and methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The prosecution alleged that the appellant possessed these drugs with the intention of selling them. The appeal was heard by Vanstone, White, and Kelly JJ.

The legal issues before the court included whether the jury's verdicts were unreasonable and unsupported by the evidence, whether the trial judge provided inadequate directions to the jury regarding the concept of possession, and whether the trial judge erred in directing the jury on the operation of the presumption in s 32(5) of the Controlled Substances Act due to the alleged invalidity of the regulation prescribing the trafficable quantity.

The court considered the appellant's argument that the regulation specifying the trafficable quantity was invalid on the grounds of unreasonableness. The appellant contended that the prescribed quantity should reflect an amount likely to be possessed for sale rather than personal use. The court acknowledged the weight of observations from previous cases suggesting that regulations should consider quantities likely to be possessed for trade, but clarified that this did not necessitate a strict dichotomy between personal use and trade quantities, as some amounts could be consistent with both. The court ultimately found that the ground of appeal concerning the invalidity of the regulation lacked substance.

The court dismissed the appeal, concluding that it must be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

Several grounds are advanced. It is said that the verdict of the jury is unreasonable and cannot be supported having regard to the evidence; then, that the trial Judge erred by failing to give adequate directions with respect to the concept of possession and finally that the trial Judge erred in the directions he gave the jury on the operation of the presumption in s 32(5) of the CSA, because the regulation prescribing the trafficable quantity was invalid.Background Before dealing with these grounds it is convenient to summarise the relevant facts. On the evening of 28 July 2008 police officers went to a house occupied by the appellant and her child at 61 Galway Street, Kilburn. At the time there were two people present in the house, namely the appellant and a man called Cabral. Cabral was searched and allowed to leave. The house was then searched. In the lounge room underneath a couch police located one small heart shaped ‘Betty Boop’ tin, a brown medicine bottle and a Winfield Blue cigarette packet. The tin contained heroin, the brown bottle contained methylamphetamine and the Winfield cigarette packet contained $1140. Elsewhere in the home police located and seized a total of seven mobile telephones, only two of which appeared to be operational. In addition to the cash found in the Winfield cigarette packet, police found a further $1280 in the appellant’s handbag in the kitchen and $6510 in a bum bag locked in a red tin located in the main bedroom of the house. The appellant admitted that the cash in her handbag and in the red tin was her money. She denied that the cash found in the Winfield cigarette packet was hers. Most of the cash located was in $50 or $100 denominations. The prosecution presented evidence in the form of bank records which established that there were no large withdrawals from the appellant’s account during the relevant period such as to explain the large sums of money in her house. The heroin inside the Betty Boop tin was in 12 individual balls packaged in plastic. That heroin was the subject of the first charge against the appellant. The total weight of the substance containing heroin was 2.17 grams, 0.43 grams (approximately 20 per cent) of which was pure heroin. The methylamphetamine inside the small brown bottle was in 11 small re‑sealable plastic bags. That methylamphetamine was the subject of the second charge against the appellant. The total weight of the substance containing methylamphetamine was 3.83 grams, 1.36 grams (approximately 35 per cent) of which was pure methylamphetamine. In an interview with the police the appellant acknowledged a number of important matters. She told the police that the house belonged to her and no other adult lived there. The appellant acknowledged that she knew the man Cabral, but said he was not living at her house and that he had arrived at her house shortly before the police arrived. She acknowledged that the car in the driveway, in which some empty re‑sealable plastic bags were found, belonged to her. She claimed that Cabral and a friend of his drove her car from time to time, although on the night the police attended she said she drove herself home alone. She said she had arrived at the property about 10 minutes before the police arrived. The appellant acknowledged owning a number of items located in the house which were important on the prosecution case. Those items included the brown methadone bottle in which the methylamphetamine was found and the Betty Boop container in which the balls of heroin were found. She acknowledged that she had a history of heroin use, that she knew how heroin was packaged and that she knew of some water balloons found in her kitchen. She admitted smoking Winfield Blue cigarettes.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The ground of appeal has no substance. We would refuse permission to appeal on this ground.Conclusion In our view, the appeal must be dismissed. WHITE J: The appellant was convicted by the majority verdicts of a jury on two counts of trafficking in a controlled drug, in contravention of s 32(3) of the Controlled Substances Act 1984 (SA) (“CSA”). Both offences were alleged to have been committed on 28 July 2008. Count 1 alleged trafficking in heroin, and Count 2 trafficking in methylamphetamine. A person may “traffic” in a controlled drug in three different ways: by selling the drug; by possessing the drug with the intention of selling it; or by taking part in the process of sale of the drug.[1] In the appellant’s case, the prosecution allegation was that she had possession of the heroin and methylamphetamine with the intention of selling them.[1] See the definition of “traffic” in s 4(1) of the CSA. A Judge granted the appellant permission to appeal against her conviction on two grounds, and referred to this Court the request for permission to appeal on the ground that the jury verdicts were unreasonable.The Prosecution Case Police went to the appellant’s home at Kilburn at about 7.45pm on 28 July 2008 and conducted a search. The appellant and a friend of hers, Mr Cabral, were in the house at the time. Mr Cabral was searched and allowed to leave. Shortly afterwards, the police found underneath a couch in the lounge room a love‑heart shaped tin, a small brown bottle, and a Winfield Blue cigarette packet. The appellant admitted to the police that the tin was hers. It contained 12 small plastic wrapped balls, described by counsel as bindles, each of which contained a white substance later analysed as including heroin. The total weight of the substance in the 12 bindles was 2.17gms, of which 0.43gms was pure heroin. That is, the heroin had a purity of approximately 20 per cent. This heroin was the subject of Count 1. The appellant also acknowledged to the police that the small brown bottle was one of her methadone bottles. Within the bottle were 11 small re‑sealable plastic bags, nine of which contained methylamphetamine. The total weight of the mixture in the bags was 3.83gms, of which 1.36gms was pure methylamphetamine (a purity of approximately 35 per cent). These drugs were the subject of Count 2. The Winfield Blue cigarette packet contained $1,140, mostly in $50 notes. Although the appellant denied knowledge of the money, she admitted that she smoked Winfield Blue cigarettes. It was common ground at trial and on appeal that both heroin and methylamphetamine are controlled drugs as defined in the CSA. The prosecution case that the appellant had possession of the heroin and the methylamphetamine, whether by herself or jointly, was based wholly on circumstantial evidence. The prosecution relied on evidence that the house at Kilburn was the appellant’s home, and that apart from her daughter, no-one else lived there. It was common ground that Mr Cabral lived elsewhere, although the appellant told police that he spent time with her at the house. The house had a closed circuit television (“CCTV”) with a single camera filming the area near the front door and relaying live images to a small television monitor in the lounge room. There was evidence that CCTVs are commonly used at premises occupied by those in the drug trade.

Ratio Decidendi

Legal Principle Established

The final matter to note before turning more specifically to the appellant’s submissions is the stringency of the test of unreasonableness which the courts apply in this context. Diplock LJ in Mixnam’s Properties Ltd v Chertsey UDC[17] expressed the proper approach in a way which has been followed by a number of Australian authorities:Thus, the kind of unreasonableness which invalidates a by-law is not the antonym of “reasonableness” in a sense in which that expression is used in the common law, but such manifest arbitrariness, in justice or partiality that a court would say “Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires”.[18]Thus a litigant who claims that delegated legislation is invalid on the grounds of unreasonableness faces a formidable task. The cases in which delegated legislation have been held to be invalid on these grounds are rare.[19][17] [1964] 1 QB 214.[18] Ibid at 237.[19] Guo v Minister for Immigration and Citizenship [2009] FCA 356 at [35]; (2009) 176 FCR 83 at 92.Consideration of Proportionality and Reasonableness Section 63(1) of the CSA vests a regulation-making power in the Governor for the general purposes of that Act, rather than for some specific identified purpose. The Governor may make “such regulations as are contemplated by, or as are necessary or expedient” for the purposes of the CSA. That being so, the question is whether the specifications in Sch 1 of the Regulations are capable of being considered reasonably proportionate to the achievement of the purposes of the CSA. It may be accepted, as a matter of principle, that the specification by the Executive of very minor quantities of a drug, or of a mixture containing a drug, may not be a valid exercise of the regulation-making power. That is because the amounts specified may be so low as to give the presumption contained in s 32(5) an unreasonable or irrational operation. Whether the specification of a particular quantity of a drug is to be characterised in that way requires an evaluation of a number of matters, including the nature of the drug and the circumstances in which it is distributed and used. The appellant sought to establish the unreasonableness of the specification of 2 grams and for heroin and methylamphetamine in Sch 1 of the Regulations in a variety of ways. First, she contended that, having regard to the purpose of the definition of “trafficable quantity”, Parliament must have contemplated that the Regulations would prescribe a quantity of pure drug, or a quantity of a mixture containing a drug, which is likely to be possessed for the purposes of sale, rather than for personal use. In support of this submission, the appellant referred to the observations of Cox J in R v Turner[20] in relation to s 5(4) of the Narcotic and Psychotropic Drugs Act 1934 (SA), a predecessor provision to s 32(5) of the CSA:It seems clear to me that Parliament, in enacting sub-s (4), contemplated that the Executive would, by regulation, and in reliance upon the expert knowledge of those advising it, determine a quantity with respect to a particular drug, having in mind the ordinary experience of drug users and, most important, the quantity of that drug that they are likely to possess for personal use as against a possession for the purpose of trade. In other words, what they are saying here is that, where a man has a particular quantity of a specified drug in his possession, then experience shows that it is reasonable to infer from that very quantity, in the absence of proof to the contrary, that his purpose in possessing the drug is a commercial purpose and not a private one.[21]The observations of Cox J concerning that provision are of course of considerable weight in the present context. However, I do not understand Cox J to be suggesting a simple dichotomy between amounts likely to be kept for private use and amounts kept for sale. There is a third category, namely those amounts which are consistent with both private use and trade purposes which Parliament may also be taken to have intended should be subject to the s 32(5) presumption. [20] (1980) 24 SASR 217.[21] Ibid at 220.