R v. Nguyen ; R v Le - [2007] QCA 162

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nguyen; R v Le [2007] QCA 162

PARTIES:

R
v
NGUYEN, Da Van
(appellant)

R
v
LE, Tuyen Thi Kim
(appellant)

FILE NO/S:

CA No 43 of 2007
CA No 44 of 2007
SC No 316 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Appeal against Conviction

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

25 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2007

JUDGES:

McMurdo P, Jerrard JA and Philippides J
Judgment of the Court

ORDER:

1. Appeal allowed
2. Convictions and verdicts set aside on counts 1, 2, 5, 8, 9 11 and 12 and instead verdicts of acquittal entered on those counts

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE EVIDENCE CIRCUMSTANTIAL – where circumstantial evidence established a strong suspicion of conducting an illegal business – where no evidence to show beyond reasonable doubt that the appellants supplied or trafficked in the dangerous drug heroin – whether the guilty verdicts could be supported by the evidence

Drugs Misuse Act 1986 (Qld), s 129(1)(b)

COUNSEL:

J R Hunter for the appellants
M J Copley for the respondent

SOLICITORS:

Bell Miller for the appellants
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: The appellants pleaded not guilty in the Brisbane Supreme Court on 12 February 2007 to one count of trafficking in the dangerous drug heroin between 31 December 2001 and 14 June 2002 at Brisbane. They also pleaded not guilty to the 15 counts of supplying a dangerous drug heroin which constituted the particulars of the trafficking charge. On 15 February 2007 the prosecution withdrew five of the counts of supplying a dangerous drug, namely counts 4, 6, 13, 14 and 16. On 19 February 2007 after a six day trial the jury convicted each appellant of count 1 (trafficking in heroin) and counts 2, 5, 8, 9, 11 and 12. The jury returned not guilty verdicts on counts 3, 7, 10 and 15. Both appellants contend that the guilty verdicts were unsafe and unsatisfactory and cannot be supported having regard to the evidence.

The evidence

A consideration of this ground of appeal requires a review of the evidence at trial. The cases against each appellant were circumstantial and the evidence did not apparently emerge as the prosecution expected. An undercover police officer who, for the purposes of the trial used the name "Jason Charles Reynolds", made regular purchases of heroin, about ten in all, from a man named Paul Battaglene. The first purchase was on 12 December 2001 and the last in June 2002. He did not give evidence of each of these individual transactions. He gave evidence only of his usual procedure. This was that Reynolds would ring Battaglene to arrange a meeting place, generally around the West End area. They would then meet and Reynolds would give Battaglene money, usually $500 or $520. Battaglene would take the money, leave…

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: [2007] QCA 162
Decision Date: 25 May 2007

CaseChat Overview and Summary

The respondents, Nguyen and Le, were convicted by a jury in the Supreme Court of New South Wales of various charges related to the supply and trafficking of heroin. The respondents appealed their convictions, arguing that the evidence presented at their trial was insufficient to support their guilty verdicts. The appeal was heard by the Court of Criminal Appeal, which was required to determine whether the jury's verdicts were unreasonable or incapable of being supported by the evidence presented. The court considered the nature of the evidence presented, which was largely circumstantial, and whether it was sufficient to prove beyond reasonable doubt that the respondents had supplied or trafficked in heroin. The court also considered whether there were any errors in the trial judge's directions to the jury.

The Court of Criminal Appeal found that the evidence presented at the trial was insufficient to support the jury's guilty verdicts. The court noted that while the evidence did establish a strong suspicion that the respondents were involved in an illegal business, there was no direct evidence linking them to the supply or trafficking of heroin. The court also found that the trial judge had erred in his directions to the jury, which may have influenced their verdicts. The court held that the verdicts were unreasonable or incapable of being supported by the evidence, and that the appeal should be allowed. The court set aside the respondents' convictions and verdicts on certain counts and entered verdicts of acquittal on those counts.

The Court of Criminal Appeal allowed the respondents' appeal and set aside their convictions and verdicts on counts 1, 2, 5, 8, 9, 11, and 12, entering verdicts of acquittal on those counts instead. The court held that the evidence presented at the trial was insufficient to support the jury's guilty verdicts, and that the trial judge's directions to the jury may have influenced their verdicts. The court found that the verdicts were unreasonable or incapable of being supported by the evidence, and that the appeal should be allowed. This decision highlights the importance of ensuring that evidence presented at a criminal trial is sufficient to support a guilty verdict, and that trial judges provide accurate and unbiased directions to the jury.

Orders

Orders of the court

1. Appeal allowed

2. Convictions and verdicts set aside on counts 1, 2, 5, 8, 9 11 and 12 and instead verdicts of acquittal entered on those counts

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.

CITATION:	R v Nguyen; R v Le [2007] QCA 162
PARTIES:	R v NGUYEN, Da Van (appellant) R v LE, Tuyen Thi Kim (appellant)
FILE NO/S:	CA No 43 of 2007 CA No 44 of 2007 SC No 316 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Appeal against Conviction
ORIGINATING COURT:	Supreme Court Brisbane
DELIVERED ON:	25 May 2007
DELIVERED AT:	Brisbane
HEARING DATE:	18 May 2007
JUDGES:	McMurdo P, Jerrard JA and Philippides J Judgment of the Court
ORDER:	1. Appeal allowed 2. Convictions and verdicts set aside on counts 1, 2, 5, 8, 9 11 and 12 and instead verdicts of acquittal entered on those counts
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE EVIDENCE CIRCUMSTANTIAL – where circumstantial evidence established a strong suspicion of conducting an illegal business – where no evidence to show beyond reasonable doubt that the appellants supplied or trafficked in the dangerous drug heroin – whether the guilty verdicts could be supported by the evidence Drugs Misuse Act 1986 (Qld), s 129(1)(b)
COUNSEL:	J R Hunter for the appellants M J Copley for the respondent
SOLICITORS:	Bell Miller for the appellants Director of Public Prosecutions (Queensland) for the respondent