R v Nguyen (No 2) - [2018] SADC 11

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NGUYEN (No 2)
Criminal Trial by Judge Alone
[2018] SADC 11
Reasons for the Verdict of Her Honour Judge Chapman
26 February 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Accused charged with three counts of Trafficking in a Controlled Drug and two counts of Unlawful Possession - heroin located in a vehicle observed to leave the premises of the accused - cash located at those premises - primary issue was possession - insufficient evidence to prove the accused was in possession of the heroin - evidence proves beyond reasonable doubt the accused was in possession of the cash.
Verdicts: Not guilty of counts 1, 2 and 3. Guilty of counts 4 and 5.
Controlled Substances Act, 1984 s 32; Summary Offences Act, 1953 s 41, referred to.
Tepper v Kelly (1998) 47 SASR 271; R v Nguyen (2013) 117 SASR 432; Baldwin v Samuels (1973) 6 SASR 144; R v Cook (2006) 95 SASR 201, applied.

R v NGUYEN (No 2)
[2018] SADC 11

The accused is charged with five offences on Information dated 3 February 2017. She filed an election for trial by judge alone on 3 February 2017. She made applications pursuant to Rule 49 of the District Court Criminal Rules for the exclusion of evidence and severance of counts. I have provided separate reasons for those rulings[1].
[1] [2018] SADC 10
The charges
The accused pleaded not guilty to all counts on the Information.
The first three counts charge her with Trafficking in A Controlled Drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The particulars of those offences are that the accused and Thiep Long Tri on 3 April 2016 at Ottoway, trafficked in a controlled drug, namely, heroin, knowing or being reckless as to the fact the substance was a controlled drug. The heroin was located in a Toyota Camry sedan driven by Mr Tri (‘the vehicle’) shortly after the vehicle had been observed by the police to leave the accused’s premises at 20 Rosewater Terrace, Ottoway (‘the Rosewater premises’).
The fourth and fifth counts each charge the accused with the offence of Unlawful Possession contrary to s 41(1) of the Summary Offences Act, 1953 (SA). The particulars of those offences are that the accused and Thiep Long Tri on 3 April 2016 at Ottoway, were in possession of personal property, namely money in the sum of $8,455 (count 4) and $3,540 (count 5), which either at the time of such possession or at a subsequent time before the making of this complaint in respect of such possession, was reasonably suspected of having been obtained by unlawful means. The cash was found at the Rosewater premises following a search by police.
The charges against Mr Tri were resolved prior to the trial of the accused.
The prosecution case
Counsel for the prosecution, Mr Allen, called five witnesses. Three of those witnesses were police officers whose evidence was not…

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 (No 2)

Details

AGLC: R v Nguyen (No 2) [2018] SADC 11
Case: [2018] SADC 11
Decision Date: 26 February 2018

CaseChat Overview and Summary

The case of R v Nguyen (No 2) involved the respondent, Nguyen, who was charged with three counts of trafficking in a controlled drug and two counts of unlawful possession. The drugs in question were heroin, which was located in a vehicle observed leaving the premises associated with the accused. Additionally, cash was found at the premises. The primary issue before the court was the question of possession, specifically whether the evidence was sufficient to prove that Nguyen was in possession of the heroin. The court found that while there was evidence proving beyond reasonable doubt that Nguyen was in possession of the cash, the same could not be said for the heroin.

The legal issues that the court was required to decide centred on the burden of proof in relation to possession of the heroin and whether the evidence presented met this burden. The prosecution had to establish that Nguyen had control over the heroin, either directly or indirectly, and that this control was unlawful. The defence argued that the evidence did not sufficiently prove that Nguyen was in possession of the heroin, focusing on the lack of direct evidence linking him to the drugs. The court had to evaluate the strength and reliability of the evidence presented, particularly the circumstantial evidence, to determine whether it was sufficient to establish possession beyond reasonable doubt.

The court found that while the evidence was compelling in proving that Nguyen was in possession of the cash found at the premises, it did not sufficiently prove that he was in possession of the heroin found in the vehicle. The circumstantial evidence, which included the presence of the vehicle at the premises and the discovery of the heroin, was not enough to establish possession. The court highlighted the need for direct evidence or a stronger chain of circumstantial evidence to meet the burden of proof for possession of the heroin. Consequently, the court acquitted Nguyen of the charges relating to the heroin but found him guilty of the charges relating to the cash. The court's reasoning was based on the principle that the prosecution must prove the elements of the offence beyond reasonable doubt, and in this case, the evidence did not meet this standard for the heroin charges.

The final orders of the court were that Nguyen was acquitted of the three counts of trafficking in a controlled drug and the two counts of unlawful possession related to the heroin. However, he was found guilty of the charges related to the cash found at the premises. The court's decision underscored the importance of direct evidence in criminal cases and the limitations of circumstantial evidence in establishing possession beyond reasonable doubt.

Orders