R v Nguyen & Truong

[1994] QCA 389

IN THE COURT OF APPEAL [1994] QCA 389

SUPREME COURT OF QUEENSLAND

C.A. No. 227 of 1994 C.A. No. 228 of 1994

Brisbane

[R. v. Nguyen and Truong]

THE QUEEN

v.

Ba Thi NGUYEN and Nho Van TRUONG

Applicants

Macrossan CJ
Pincus JA

Ambrose J

Judgment delivered 06/10/1994
Each member of the Court delivering separate reasons,

Concurring as to the Orders made.

A PPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCES REFUSED.

CATCHWORDS: CRIMINAL LAW - sentence - effect of S57(c) Drugs Misuse Act on sentencing process - whether knowledge deemed for sentencing purposes - whether sentencing judge must establish all relevant facts on balance of probabilities - Sargent C.A. 99 of 1993, 19 August 1993 discussed.

Counsel:  Mr T. Glynn for the Applicants

Mr D. Bullock for the Crown

Solicitors:Robertson O'Gorman for the applicants

Director of Prosecutions for the Crown

Hearing Date:24/08/1994

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered: 06/10/1994

Ambrose J. has reached the conclusion that these applications for leave to appeal against sentence should be refused. I agree with that conclusion and desire to add some further observations on the point argued particularly, as I understood it, for the male applicant, Truong. The submission was that he should have been sentenced only on the basis of presumed involvement by reason of the statutory prescription in s.57(c) of the Drugs Misuse Act and not on the basis that he had possession in fact of the drugs. The argument on appeal ranged widely enough to claim the benefit of a somewhat similar point on behalf of the female applicant but it appears to have been thought that it could be urged more forcibly on Truong's behalf.

Under the general law some mental element is a necessary ingredient in the case of a person regarded as having possession of a thing. The precise nature of this mental element has been examined in a number of cases but I do not find it necessary to carry this general inquiry further in the present case.

In R. v. Sargent C.A. No. 99 of 1993 unreported, delivered 19 August 1993, this Court decided that s.57(c) of the Drugs Misuse Act in cases when it applied, resulted in a conclusion by virtue of statute that the person involved had the drug in his possession unless he showed the lack of knowledge and reason to suspect that the subsection mentions. That is, the Court in Sargent did not consider that the statutory conclusion of possession by virtue of the subsection involved also a statutory attribution of actual knowledge to the offender in question. Rather it bypassed the need for the prosecution to prove and the Court to find that the offender had knowledge of the existence of the thing in question and an intention concerning the control of it.

Notwithstanding some unresolved reservations expressed by the President and Cullinane J. in the subsequent case of Symes v. Lawler C.A. No. 204 of 1993 unreported, judgment delivered 19 October 1993, I consider, with respect, that…