R v Pham

Case [2017] QCA 43

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pham [2017] QCA 43

PARTIES:

R
v
PHAM, Duy Hoa
(appellant)

FILE NO/S:

CA No 304 of 2015
SC No 864 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 27 November 2015

DELIVERED ON:

21 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

3 November 2016

JUDGES:

Margaret McMurdo P and Morrison and Philippides JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal against conviction is dismissed.

2.   The application for leave to adduce evidence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by jury of one count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug namely heroin – where the drugs were concealed inside two wooden altars – where the appellant contends that the evidence at his trial was insufficient to support an inference beyond reasonable doubt that he knew or believed the altars contained a border controlled drug rather than some other illicit goods like cigarettes or tobacco – whether a verdict of guilty was reasonably open to the jury on the whole of the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant’s co-defendants were represented by the same firm of solicitors – where the appellant did not give or call any evidence at trial and relied solely upon evidence given by a co-defendant – where parts of that evidence inculpated him – where the appellant asserts that he was not advised of the content of that evidence prior to trial – where the appellant contends that his solicitors had an actual or apparent conflict of duties and that as a result he was deprived of a fair trial – where the appellant seeks leave to adduce evidence regarding the conduct of his case by his former solicitors – where the appellant did not provide any evidence that he would have conducted his trial differently had he known the details of his co-defendant’s evidence in advance – whether leave to adduce evidence should be granted – whether a fair-minded observer would entertain a reasonable suspicion that justice had miscarried

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PRESENTATION OF DEFENCE CASE – APPEAL DISMISSED – where the appellant was convicted by jury of one count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug namely heroin under s 307.5 Criminal Code (Cth) – where the appellant contends that on the evidence the jury could have inferred that he did not know the altars and their contents were imported – where the appellant argues that the jury should have been…

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Details
AGLC
R v Pham [2017] QCA 43
Case
[2017] QCA 43
Decision Date

CaseChat Overview and Summary

Pham appeals against his conviction of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely heroin, contrary to section 307.5 of the Criminal Code (Cth). The appeal is heard by the Queensland Court of Appeal. Pham argues that the evidence at his trial was insufficient to support an inference beyond reasonable doubt that he knew or believed the altars contained a border controlled drug. Pham further contends that his solicitors had an actual or apparent conflict of duties and that as a result he was deprived of a fair trial. Pham also seeks leave to adduce evidence regarding the conduct of his case by his former solicitors. Finally, Pham argues that the trial judge erred in not directing the jury to consider the defence under section 307.5(4) of the Criminal Code (Cth).

The court found that the evidence at trial was sufficient to support an inference beyond reasonable doubt that Pham knew or believed the altars contained a border controlled drug. The court found that Pham's solicitors did not have an actual or apparent conflict of duties and that Pham was not deprived of a fair trial. The court refused Pham's application for leave to adduce evidence regarding the conduct of his case by his former solicitors. The court found that the defence under section 307.5(4) of the Criminal Code (Cth) was not raised on the evidence and that the trial judge did not err in not directing the jury to consider that defence.

The appeal against conviction is dismissed. The application for leave to adduce evidence is refused.

Orders

Orders of the court

1. The appeal against conviction is dismissed.

2. The application for leave to adduce evidence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Ultimately the appellant did not pursue grounds 3 and 6. He has also applied for leave to adduce evidence pertinent to ground 5 as to aspects of the conduct of his case by his former lawyers.The evidence at trial Before discussing the grounds of appeal, it is necessary to understand the evidence at trial. The prosecution case was that the appellant and Mr Tran both attempted to possess a commercial quantity of unlawfully imported border controlled drugs by assisting in loading the altars onto the trailer at Robertson and dismantling them in the shed at Munruben. The evidence in the appellant’s trial has been largely and comprehensively set out by Morrison JA in this Court’s decision in R v Tran.[1] I will only repeat or add to this to explain my reasoning.[1][2017] QCA 31. The evidence and admissions[2] established that a shipping container was imported into Brisbane from Vietnam on 28 October 2012 containing, amongst other items, two wooden altars. On 6 November 2012, customs officers detected 78 packages of white powder in the altars. This was later forensically analysed as containing over 33 kilograms of pure heroin valued at between $10 and $20 million. The authorities replaced the heroin with an inert white powder and resealed the altars with concealed listening and tracking devices. On 9 November 2012, the altars were delivered to a premises at Robertson where they remained overnight. The occupants of the Robertson premises were not implicated in the offence. The following day Mr Nguyen drove a Nissan Pathfinder towing a Handy Hire trailer to the premises.[3] He was accompanied by the appellant and Mr Tran who assisted in loading the altars into the trailer.[4] Mr Nguyen then drove the Nissan and trailer to a shed at Munruben with the appellant and Mr Tran following in a Ford Fairmont.[5][2]Exhibit 1, AB 477 – 479.[3]T2-17, l 27 – l 33, AB 87.[4]T2-83 – T2-84, AB 153 – 154; T4-41, 281.[5]T2-18, l 27 – l 37, AB 88; T4-42 – T4-43, AB 282 – 283; Exhibit 13, AB 485. Surveillance evidence and a tendered audio recording from the concealed listening and tracking devices established that the altars were moved into the shed that afternoon. Mr Dang was also at the shed which was 7 to 10 metres from a house belonging to Mr Pham’s brother-in-law, Mr Lu Lee,[6] who was not implicated in the offending. Later that evening police found $19,000 cash in a wallet in a safe in the main bedroom of the house.[7] Mr Dang, Mr Tran, Mr Nguyen and the appellant then moved a second load of furniture from Robertson to the shed[8] but these items are not relevant. The appellant did not leave the shed after returning with this second load of furniture until apprehended by police.[6]T2-37, l 28 – l 33, AB 107.[7]T3-7, l 16 – l 35, AB 179.[8]T4-50 – T4-51, AB 290 – 291. The evidence established that at about 3.43 pm, Mr Nguyen left the Munruben property in the Pathfinder, towing the trailer, and Mr Tran left in the Fairmont to fetch a hammer from his nearby home, returning a few minutes later.[9] Loud noises and conversation, mostly in Vietnamese but sometimes in Hmong, associated with dismantling the altars were recorded between about 4.05 pm and 4.38 pm. Only the conversation in Vietnamese was translated for the jury. It was consistent with more than one male working together with tools to dismantle the altars. Nothing in the recording was exculpatory of the appellant.[9]Exhibit 15, AB 501.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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