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R v Nguyen

R v Nguyen

Case [2005] VSCA 172 27 July 2005

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 309 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS
REFERENCE NO.1 OF 2004

No. 224 of 2004

THE QUEEN
	v.
THANG DUC NGUYEN

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JUDGES:	VINCENT, EAMES and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 June 2005
DATE OF JUDGMENT:	27 July 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 172	First Revision: 27 July 2005

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CRIMINAL LAW – Drug offences – Trafficking – Trafficking in not less than a large commercial quantity – Trafficking in not less than a commercial quantity – Mens rea – Knowledge of nature and quantity of substance – Whether sufficient for Crown to prove knowledge of a significant or real chance that nature and quantity of substance were as proscribed – Directions to be given to jury – Drugs, Poisons and Controlled Substances Act 1981, ss.71 and 71AA.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan QC, D.P.P. Ms C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr M.J. Croucher Mr M.J. Gleeson	Michael J. Gleeson & Associates Pty.

VINCENT, J.A.
EAMES, J.A.

NETTLE, J.A.:

On 30 August 2004 the applicant, Duc Thang Nguyen, was arraigned before the County Court at Melbourne on one count of trafficking in a drug of dependence, namely, heroin, in a quantity that was not less than the commercial quantity applicable to that drug, contrary to s.71AA of the Drugs, Poisons and Controlled Substances Act 1981 (“the Act”) (count 1), and one count of trafficking in a drug of dependence, namely, methylamphetamine, in a quantity that was not less than the large commercial quantity applicable to that drug, contrary to s.71 of the Act (count 2); and to both counts he pleaded not guilty. On 31 August 2004 he was re-arraigned on count 1, to which he pleaded not guilty, but guilty of trafficking in heroin contrary to s.71AC of the Act (scil. trafficking in less than a commercial quantity). On 1 September 2004 he was re-arraigned on count 2, to which pleaded not guilty, but guilty of trafficking in methylamphetamine (scil. trafficking in less than a commercial quantity). After a trial which lasted three days the jury returned a verdict of not guilty of trafficking in a commercial quantity of heroin but guilty of trafficking in heroin, and not guilty of trafficking in more than a large commercial quantity of methylamphetamine but guilty of trafficking a commercial quantity of methylamphetamine.

A commercial quantity of heroin is 250 grams pure and 500 grams mixed. A commercial quantity of methylamphetamine is 250 grams pure and 1.25 kilograms mixed. A large commercial quantity of methylamphetamine is 750 grams pure and 2.50 kilograms mixed.[1]
[1]Drugs, Poisons and Controlled Substances Act 1981, Schedule 11, Part 3.

The applicant now applies for leave to appeal against conviction on the count of trafficking in a commercial quantity of methylamphetamine contrary to s.71AA of the Act and there is also before the court a reference by the Director of Public Prosecutions…

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 Nguyen

Details

AGLC: R v Nguyen [2005] VSCA 172
Case: [2005] VSCA 172
Decision Date: 27 July 2005

CaseChat Overview and Summary

In the case of R v Nguyen, the defendant was charged with trafficking in a large commercial quantity of a controlled substance under the Drugs, Poisons and Controlled Substances Act 1981. The matter was heard in the County Court of Victoria, where the defendant challenged the sufficiency of the evidence provided by the Crown to establish the requisite mens rea for the offence of trafficking.

The central legal issue the court had to address was whether the Crown needed to prove that the defendant had actual knowledge of both the nature and quantity of the controlled substance being trafficked, or if it was sufficient for the Crown to demonstrate that the defendant was aware of a significant or real chance that the substance's nature and quantity were as proscribed by the Act. The court also had to determine the appropriate direction to provide to the jury regarding the necessary mens rea for the offences of trafficking in a large commercial quantity and trafficking in a commercial quantity.

The County Court of Victoria ruled that the Crown must prove that the defendant had actual knowledge of the nature and quantity of the substance being trafficked. The court held that it was not enough for the Crown to prove that the defendant was merely aware of a significant or real chance that the substance's nature and quantity were as proscribed. The court directed the jury to consider whether the defendant had actual knowledge, rather than merely being aware of a significant or real chance, of the nature and quantity of the controlled substance. Consequently, the court quashed the conviction and ordered a retrial, ensuring that the jury would be properly directed regarding the required mens rea for the trafficking offences.

This ruling clarified the mens rea requirement for drug trafficking offences under the Drugs, Poisons and Controlled Substances Act 1981, emphasising that actual knowledge is necessary to establish the offence of trafficking in a large commercial quantity or a commercial quantity of a controlled substance. The court's decision provided guidance to both prosecutors and defendants in future cases involving similar drug trafficking charges, ensuring that the jury is correctly informed about the requisite mental element for these offences.

Orders