R v Paek

[1999] NSWCCA 184

CITATION:

R v PAEK [1999] NSWCCA 184

FILE NUMBER(S):

CCA 60613/98

HEARING DATE(S):

30 June 1999

JUDGMENT DATE:

30 June 1999

PARTIES :

Regina
(Crown)

v

Lenhi PAEK
(Appellant)

JUDGMENT OF:

Grove J at 56; Abadee J at 57; Barr J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0773
LOWER COURT JUDICIAL OFFICER:	Luland DCJ

COUNSEL:	RA Hulme (Crown) GD Wendler (Appellant)
SOLICITORS:	CK Smith (Crown) Van Houten (Appellant)
CATCHWORDS:	Criminal Law - whether direction necessary that it would be dangerous to convict on uncorroborated evidence of an accomplice.
ACTS CITED:	Evidence Act s 164, 165(1)(d), (4), 165(2)(c)
CASES CITED:	Regina v Yee Kam Lau, Court of Criminal Appeal 2.12.98 unrep Longman v The Queen (1989) 168 CLR 79 Regina v Johnston (1998) 45 NSWLR 362 Regina v Spencer [1987] AC 128
DECISION:	Leave to appeal refused; Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60613/98

GROVE J
ABADEE J
BARR J

Wednesday, 30 June 1999

REGINA v Lenhi PAEK

JUDGMENT

1   GROVE J: I will ask Justice Barr to give the first judgment.

2   BARR J: The appellant, Lenhi Paek, was convicted by a District Court jury of supplying not less than the commercial quantity of a prohibited drug, namely 440 grams of heroin.

3   Judge Luland of Queen’s Counsel sentenced her to eight years’ imprisonment, comprising a minimum term of five years and an additional term of three years. The appellant appealed against her conviction and sought leave to appeal against the sentence. She has not pressed her application for leave to appeal against the sentence.

4   The Crown asserted that the appellant supplied heroin to Van Hung Nguyen. There were only two witnesses to the precise conversations and arrangements made by and between Nguyen and the appellant, namely Nguyen and the appellant. Although there was a good deal of evidence from police officers who observed the movements of Nguyen, the appellant and others, they could not say precisely what was happening from time to time.

5   Nguyen’s version was as follows. He lived in Melbourne. He telephoned the appellant and arranged to meet her at Sydney Casino. The two of them met there twice and on the second occasion they had a conversation about heroin. She mentioned a Chinese man who could supply it. She pointed him out.

6   Nguyen asked how much half a kilo would cost and the appellant said that she would find out. They arranged to speak about the matter later and the appellant gave Nguyen her telephone number. He telephoned her again within a couple of days and she told him that the man had quoted $96,000 for half a kilogram of heroin.

7   Nguyen made his own enquiries and collected money from people who would buy the drug from him. Then he telephoned the appellant and told her that he wanted to buy half a kilogram. A little later he was told by another Melbourne resident, Hai Le, that he wanted to buy half a kilogram as well and he telephoned the appellant and told her as much.

8   On 26 May 1997 the appellant told Nguyen that she could supply the drug. On the same day Nguyen flew to Sydney. A man called Minh, a resident of Sydney who had been temporarily visiting Melbourne, accompanied him. Nguyen had $96,000 with him. When Nguyen arrived in Sydney he telephoned Le and arranged to collect cash from him for his share.

9   Nguyen and Minh were met at Sydney Airport by a number of people in a Toyota Tarago van. They were the appellant and Minh’s wife and sister, called In or Yen. Minh’s wife drove the van and they all went to Newtown and had a meal at a restaurant. During the meal Nguyen asked the appellant whether the goods were ready and she said, “Nine o’clock”. Nguyen again spoke to Le on the telephone.

10   Minh’s wife and sister parted company from the group and Nguyen, the appellant and Minh returned to the van. The appellant told Minh to drive to Park Street, Sydney, and he did. On the way they stopped near Central Railway to pick up Le. Le got into the van and gave Nguyen money in a plastic bag.

11   Nguyen put the two bundles of money together. Le got out of the van and the other three continued the journey to Park Street. Minh parked the van and the appellant and Nguyen got out. Nguyen handed the bag of money to her and she said that she would return to the van in ten or fifteen minutes.

12   Nguyen was nervous about the matter in view of the substantial sum of money he had handed over and followed the appellant as she walked along the street. He saw her meet the Chinese man she had previously pointed out to him at the casino. He followed them until they entered a building. He waited outside the building and the appellant returned ten minutes later. She told him that the drug was in the handbag she was carrying.

13   They returned to the van and sat side by side in the back seat. The appellant took heroin out of her handbag and handed it to Nguyen. There were two packages and Nguyen put one of them on the front seat. That was for Le. He put his own in a bag and left it under his feet on the floor of the van.

14   The van moved off again and stopped at a place which had been arranged with Le. He got in, sat in the front seat, collected the drug intended for him and got out of the van again. He was arrested shortly afterwards with about 445 grams of heroin in his possession.

15   The van continued towards the western suburbs of Sydney and was stopped by police. The appellant and Nguyen were arrested and another, about equal, amount of heroin was found in the van.

16   The other account came from the appellant. She said that she was a beautician who was friendly with a customer of hers called Yen. She met her at the casino about a week before her arrest. Yen joined the appellant at her table and pointed out Nguyen who was nearby, and told her that he was her (the appellant’s) foster brother. Nguyen looked at her and smiled. He exhibited a sentimental interest in her.

17   When the time came to go home, he offered her a lift. The next day he invited her out to lunch and they went to a Thai restaurant in Fairfield and then spent some time at a motel where he was staying. That would have been 21 May.

18   On 23 May he telephoned her and invited her to the casino for dinner. She accepted. At the casino Nguyen continued to display a friendly and sentimental attitude towards the appellant. They parted good friends on that night and Nguyen said that he was returning to Melbourne. There was no mention of drugs.

19   On 26 May Nguyen telephoned her again and told her that he was coming to Sydney and that he was missing her. She was thinking that she might like to go to the casino that evening and that she might ring a friend and suggest a visit. Then, luckily, Yen telephoned her and said she was going to go to the casino. The appellant accepted the offer of a lift. They arranged that Yen would collect her and she came to the appellant’s home at six o’clock and picked her up in the Tarago van. Minh’s wife was there as well.

20   Unexpectedly to the appellant, the van went to the airport and not the casino. When she arrived there she saw Minh and Nguyen. She was surprised. The group went to Newtown to a restaurant. During the time they were there, there were conversations between various members of the group which she did not understand.

21   After the meal Yen and Minh’s wife decided to go home by taxi. The other three got into the van and Nguyen told Minh, the driver, to go to George Street. He made a telephone call. They went to George Street and there was Le. He got in and spoke to Nguyen about the money, whether there was enough. Nguyen told Le that when he was ready he would pick him up.

22   The van went to Park Street, but not at the appellant’s directions. The van stopped and Nguyen got out carrying the bag. He asked the appellant to go with him, so she got out. He asked her to do him a small favour, to carry the bag and give it to a person waiting at the corner of a nearby building.

23   She said, “What’s that, it’s money, isn’t it?” She thought it was money because she had heard conversation about money in the van. Nguyen said, “It’s a lot of money in there. It’s better if I stay back and watch out.” The appellant thought that Nguyen was acting as he did out of fear of a possible robbery.

24   Nguyen told her to go to where there would be a man waiting. She complied with his request and met a man, who greeted her and asked her where her friend was. He kept walking and the appellant followed. He entered a building, but the appellant was afraid because she could not see Nguyen. The man reassured her and she accompanied him up in the lift. The man went through a doorway and the appellant waited outside. He came out again holding a small package.

25   The appellant was familiar with the system of pawning jewellery and other valuables and thought that what was happening was that Nguyen had previously pawned valuables and was now redeeming them. She took the bag, went down in the lift and found Nguyen waiting nearby. She told him she had something for him but he told her to leave it where it was. They returned to the van and got inside.

26   Nguyen took the package out of her bag and opened it. She did not look at what was in it. Minh made a telephone call, she assumed to Le, and the van started off again. When it stopped, Le got in. There was some conversation but she took no notice of it and after a short time Le got out again.

27   Nguyen then said that they would go to a motel and began holding the appellant’s hand. On the way, they were stopped by the police and arrested.

28   She had no idea that Nguyen or Le were intending to buy drugs or that there were drugs in the bag the man handed to her to give to Nguyen.

29   The first ground of appeal argued asserted that his Honour failed to direct the jury that before they could convict the appellant they had to be satisfied beyond reasonable doubt that she knew that the quantity of heroin was not less than the commercial quantity. In summing up the case to the jury, his Honour said this:

What is it then that the Crown must prove beyond reasonable doubt? The Crown must prove to you these three elements before you convict the accused and prove them beyond reasonable doubt, as I say. First, it must be proven by the Crown that the accused knowingly supplied a substance; it must be then proved that the substance that she in fact supplied was a prohibited drug; and thirdly, in respect of this case, it must be proved that the amount of the prohibited drug she supplied was not less than a commercial quantity of that prohibited drug.
Let me deal with the second and third elements of those, first of all. It would seem that those particular elements are not in dispute in this case in that it has not been contested, as I see it, that the substance that was ultimately found both in Hai Le’s possession and also in the motor van that was stopped by police, there has been no issue that the substance was not in fact heroin.

30   Later on his Honour said this:

... there has been no challenge that it was in excess of 250 grams, so it would seem to me that you would have to spend little time being satisfied beyond reasonable doubt that both it was a prohibited drug and that it was not less than a commercial quantity. As both counsel have indicated, this case is really about whether the accused knowingly supplied that heroin to any person.

31   It was submitted that the learned trial judge was obliged to instruct the jury that the Crown had to prove beyond reasonable doubt not only that the appellant knew of the presence of heroin but that she knew that the amount exceeded the commercial quantity, namely 250 grams.

32   Reference was made to Regina v Yee Kam Lau (Court of Criminal Appeal, unreported, 2 December 1998). It was submitted that without such a full instruction there was a real possibility that the jury convicted the appellant on the basis that she knew of the existence of the heroin but not how much there was, especially since his Honour had told the jury that the element of quantity was not in dispute.

33   As appears from the summary of the evidence which I have set out in this judgment, the Crown relied upon the evidence of Nguyen. If the jury had a reasonable doubt that he was telling the truth, they would have had to acquit the appellant. That was the way counsel saw and conducted the case.

34   During his summing-up his Honour said this:

The evidence really has been within a relatively short compass. You have heard both counsel say that the case, to the greatest extent at least, relies upon the two main persons, Mr Nguyen and what the accused says herself. That is pretty clear, the way the case has been conducted by both parties.

35   Later on his Honour said this:

The Crown, as I see it, relies on, to prove its case, the accused’s knowledge that she supplied a prohibited drug, principally on the evidence of Mr Nguyen.

36   The defence case was that the appellant simply did not understand what was happening at the airport and during the journey to Park Street. She did not understand the conversation about money. She gave no directions. She was not a supplier of drugs. She admitted carrying the money to the man and returning with the heroin, but in the belief that the bag contained redeemed valuables or some such thing.

37   The defence could hardly have challenged the payment of $96,000 on behalf of Nguyen and of a similar sum on behalf of Le, or the handing over by the man of the amount of heroin Nguyen had ordered, namely about a kilogram.

38   Although there was some cross-examination of Nguyen about the precise amount of money handed over - by reference to a record of $90,000 in the transcript of an interview between Nguyen and the police - it was never suggested to him that he was not, on that occasion, paying a large amount of money for one kilogram of heroin, one half for himself and the other half for Le. The defence case was simply that Nguyen had decided falsely to implicate the appellant in order to obtain a sentence less than the one he deserved for his crime.

39   So, in the way the trial was conducted, the jury had no reason to differentiate between one part of Nguyen’s evidence and another. If they accepted his evidence generally, they must have accepted it as to the amount of money paid and the amount of heroin contracted for.

40   On the case conducted by the Crown and the defence, the appellant either knew that a kilogram of heroin was being sold for $192,000 or she did not know that heroin was being sold at all. That explains why his Honour directed the jury as he did and why, when invited to do so, defence counsel declined to ask for a redirection.

41   This was not a case like Yee Kam Lau, where the facts gave rise to a real issue whether the accused knew or was aware of the likelihood that what he possessed was a quantity of heroin which exceeded the commercial quantity. I would refuse leave to appeal on this ground.

42   The next ground of appeal argued complained about what was said to be the failure by his Honour to instruct the jury that it would be dangerous to convict the appellant on the uncorroborated evidence of Nguyen. On his own evidence Nguyen was an accomplice, and his evidence had to be made the subject of a warning: Evidence Act s 165(1)(d). However, no particular form of words was required: subs (4).

43   His Honour said this to the jury:

I give you this direction now, because it is a very important direction in this case. Not that the others are not important, but this is very important because of the very nature of this case and what the Crown relies upon to prove it, and I give it to you now because I will be making reference back to it when I am dealing with Mr Nguyen’s evidence. Mr Nguyen has admitted himself that he was involved in this crime. He pleaded guilty to it. Therefore, you might have very little problem determining that Mr Nguyen is an accomplice, that is, a party to this crime. He says so himself.
The law requires me to tell you people that his evidence could therefore be unreliable. You see, the reason the law requires me to tell you people this is not that the law thinks that you people do not have any commonsense, but the law is built up from a great history of experience. We sit in these courts every day of our lives, and we see cases over and over again. The law has been operating for centuries and the law recognises that certain types of evidence can be unreliable.
You people coming from your everyday lives, we do not know if you have sat on a criminal trial before. Chances are that some of you have never sat on a criminal trial or all of you have not, so you come to this experience as a unique experience and you therefore might not readily recognise the dangers of a particular area of evidence that in fact can be unreliable.
Therefore, there is an obligation upon judges to emphasise to juries when such occasions arise, and the law recognises that when there are joint parties in a crime that there may be very good reasons why one participant may say something that is in fact untrue to further his own interests, and he may do so to the real prejudice of some other person.
Now, that could apply in this particular case, because we know that Mr Nguyen was a participant in the trial and we know that Mr Nguyen has given evidence, and very damning evidence against the accused, from what he has said. Now, it may be that his evidence is unreliable. Ultimately it is a matter for you, the jury, to say whether you accept it or whether you reject it, having regard to all of the material in this case, but it is for me to tell you to carefully scrutinise his evidence and be conscious of the fact that it is, or could be unreliable. It is a matter for you. You see, there may be many and varied reasons why such a person would give untruthful evidence to further his own interests to perhaps encourage considerations from all sorts of areas. It may be to make life more comfortable in prison where he knows he must go or to look after the interests of some third person that we do not know about, so therefore you blame some other person. They are some examples as has been suggested in this case. To look after his own interests and his own interests being to get the best result he can for himself by way of a reduction of sentence that we in fact heard he got. So you can see that there might be many and varied reasons why such a person’s evidence could be unreliable. And I mention the last of those, because we do know that he got a discount on his own sentence because he assisted authorities and was willing to give evidence against the accused.
Now, he, like anyone else, could probably easily manufacture evidence if he chose to do so. On the other hand, it is a matter for you, he may very well be telling the truth. It is again a matter for you. You have to make the ultimate decision. Let me say this to you, though. There is nothing particularly unusual about what Mr Nguyen has done. People often give evidence in these courts, and often they have been parties to crimes themselves, and often in giving evidence against somebody else they have got reductions of sentences. Our law makers have in fact told us there is a section of our law that says a judge has to take that into account on sentence, and give a person the advantage of it if he assisted the authorities in bringing other wrongdoers to justice and when you think about it, perhaps it is not an unjustifiable thing for law makers to do, because as Mr Crown put to you, there is a community interest to ensure that all wrongdoers are brought to justice. So if one wrongdoer is prepared to assist the authorities in bringing other wrongdoers to justice, it can be seen perhaps why our law makers have regarded that as being something that they should be, as it were, given credit for.
Of course, it can bring about that very real unreliability that we speak about that they might be willing to tell lies about other people to get a benefit that they should not get because they are telling lies. What Mr Glennon says to you is that in this case that is exactly what has happened here. He has told lies about the accused so as to feather his own nest and get that couple of years reduction on the sentence that he got.
Mr Crown says to you that is not the case. At all times when he was arrested he immediately made a clean breast of his own involvement in this case, and there has been no evidence before us, anyway, that he was saying anything about the accused at that stage, maybe he did, but it was not until later in the piece on the evidence in this case that we heard that he became aware that he would get a discount on his sentence, or some consideration, if he was prepared to come along and give evidence against the accused, and the Crown says to you that is exactly what happened. There has been no deal, as has been put, between the police and him. It is the Crown that is prosecuting this case, and the Crown has called in Mr Nguyen in evidence, and the Crown who has prosecuted Mr Nguyen, and who ensured through the police that the court became aware of his assistance, and thus he got his discount for that.
So ladies and gentlemen of the jury, you will see that it is a very important direction I give you to scrutinise his evidence carefully, because it does fall into that area of the possibility of being unreliable, and you have to treat it with great caution. On the other hand, it does not mean for one moment that simply because he did give evidence against the accused, simply because he did get a discount on sentence, that you should disbelieve him. You look at what he says, together with all the other evidence, and look at it very carefully and ask yourself in the end result do you believe him, and that is your ultimate task.

44   Defence counsel did not ask for any further direction. It was submitted on appeal that his Honour failed to comply with the requirements of s 165(2)(c) Evidence Act in that he did not instruct the jury that it would be dangerous to convict the appellant in the absence of corroboration of Nguyen’s evidence.

45   In fact, s 165(2)(c) contains no reference to the danger of conviction or to the presence or absence of any need for corroboration. The subsection is in the following terms:

(2) If there is a jury and a party so requests, the judge is to:
...
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

46   Reference was made to s 164 which is in the following terms:

164 (1) It is not necessary that evidence on which a party relies be corroborated.

(2) Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a similar or related offence.

(3) Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the judge:
(a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect, or
(b) give a direction relating to the absence of corroboration.

47   It was submitted that notwithstanding s 164(1) and (3)(a), it is necessary, when the Crown relies on evidence of an accomplice, to have a warning about the danger of convicting upon the uncorroborated evidence of that accomplice. I do not accept that submission. The Evidence Act has, in plain terms, removed the need for corroboration, at least in a case like the present, and the necessity for the trial judge routinely to warn the jury that it is dangerous to act on the uncorroborated evidence of a witness.

48   However, that does not mean that such a warning will never be appropriate. The general law requires a warning to be given, whenever it is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case. Longman v The Queen (1989) 168 CLR 79 at 86.

49   There is no fixed body of rules requiring a warning in specific circumstances or in particular terminology. See the judgment of Spigelman CJ in Regina v Johnston (1998) 45 NSWLR 362 at 369, in which his Honour cited, with approval, the remarks of Lord Hailsham in Regina v Spencer [1987] AC 128 at 135.

... modern cases ... are reluctant to insist on any magic formula or incantation, and stress instead the need that each summing-up should be tailor-made to suit the requirements of the individual case.

50   It was put on behalf of the appellant that the fact that Nguyen was an accomplice and that he had received a significant discount on his sentence in return for his anticipated evidence, that the trial pitted oath against oath, and that the appellant raised good character, led to the need to give the direction contended for. I do not agree. In my opinion the summing-up clearly warned the jury that the evidence could be unreliable and why, and that they should carefully scrutinise it, bearing in mind that it could be unreliable.

51   In my opinion the directions were appropriate to the circumstances of the case.

52   There is a further reason why this ground of appeal should fail in my opinion. When the van was stopped and the occupants arrested Nguyen and the appellant were seated side by side in one of the rear seats. According to the evidence of Constable Thompson there was a bag at the appellant’s feet, containing blocks, which turned out, on analysis, to comprise more than the commercial quantity of heroin.

53   If his Honour had given the direction contended for, he would have been obliged to direct the jury’s attention to evidence capable of corroborating Nguyen’s evidence, including the finding of the heroin at the appellant’s feet, and the acknowledged facts that the appellant had taken the purchase money from Nguyen to the supplier and collected the heroin from him and brought it back into the presence of the man who ordered it.

54   In my opinion, any reasonable jury would have regarded that evidence as corroboration of the strongest kind and that may explain why defence counsel did not ask for such a direction.

55   I would refuse leave to appeal on this ground also and I would dismiss the appeal.

56   GROVE J: I agree.

57   ABADEE J: I agree.

58   GROVE J: The order of the Court, therefore, is that the appeal is dismissed.

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