R v Quoc Tranh Tran & Giang Son Nguyen No. DCCRM-00-949

R v Tran & Nguyen
[2002] SADC 45
Judge Muecke
Criminal

At 4.58pm on Friday 21 July 2000 the Indian Pacific arrived at the Keswick Railway Station in Adelaide. It had departed from the Central Railway Station in Sydney at about 3pm on Thursday 20 July 2000.
At the Keswick Railway Station to meet the train were Kim Bang Tran (‘Mr Kim Tran’) and Quoc Thanh Tran (‘Mr Tran’). These two men had driven to the railway station in Mr Kim Tran’s vehicle. Mr Kim Tran was a resident of Adelaide at that time and Mr Tran was a resident of Sydney. Mr Tran had flown from Sydney to Adelaide that day and had arrived at about 2pm. He had travelled by Ansett in business class. He had travelled under the name ‘Mr N Kuong’.
The two men met Giang Son Nguyen (‘Mr Nguyen’) who alighted from the train upon its arrival at Keswick. Mr Nguyen was carrying a white plastic shopping bag containing some items. The three men were arrested by police in the vicinity of Mr Kim Tran’s car. In the white shopping bag that Mr Nguyen was seen carrying from the train police found four blocks of heroin. The four blocks were each within a gram of 350 grams in weight and each was within 0.2 of a percentage of 49% pure heroin. Each block was wrapped in some layers of plastic. Two blocks were contained within sealed cellophane packets with graphics indicating that they contained Asian ‘Shrimp Crackers’. The other two blocks were contained within sealed cellophane packets with graphics indicating that they contained Asian ‘Tamarin Candy’.
On the day following the arrests police searched adjoining premises at Fred Hollows Court and at Arthur Street, Pennington. The premises at Fred Hollows Court were apparently owned by the girlfriend of Mr Kim Tran. He stayed at those premises sometimes. In a box in a garage attached to the house, inside a small plastic package, was a disused potato chip packet which was secured by several rubber bands. Inside the chip packet were several blocks of heroin. They totalled 227.6 grams in weight and contained 71.5 grams of heroin. The blocks, therefore, were 31.4% pure heroin.
Mr Nguyen was charged with knowingly taking part in the sale of heroin on 21 July 2000 at Keswick. He pleaded guilty on 4 October 2000 and was committed for sentence in this Court. Mr Tran was also charged with knowingly taking part in the sale of heroin on 21 July 2000 at Keswick. He pleaded guilty and on 24 October 2000 was committed for sentence in this Court.
Mr Kim Tran was charged with knowingly taking part in the sale of heroin on 21 July 2000 at Keswick and was also charged with knowingly having heroin in his possession on 22 July 2000 at Pennington for the purpose of selling it to another person. He pleaded guilty to those two charges and on 24 October 2000 was committed for sentence in this Court.
The charge against each man of taking part in the sale of heroin on 21 July 2000 related to the four blocks of heroin seized by police at the Keswick Railway Station shortly after the arrival of the Indian Pacific on that day from Sydney.
The further charge against Mr Kim Tran of possessing heroin for sale on 22 July 2000 at Pennington related to the heroin police found and seized at a residence at Fred Hollows Court, Pennington, the day following the events at the Keswick Railway Station.
Mr Nguyen first came before this Court on Monday 6 November 2000. His matter was adjourned to 27 November 2000 when the other two men were due to appear in this Court. The three men came before me on Monday 27 November 2000 in the arraignment list. I adjourned each matter upon an indication that discussions were ensuing as to the factual basis of the pleas of each of the accused. There were various attendances before me thereafter. The matters in respect of all three men came before me together until it became clear that agreeing a factual basis for sentencing was not going to be straight-forward exercise. I was told of a letter written by Mr Nguyen dated 7 February 2001 which potentially caused difficulty with the Crown’s agreement as to the factual basis. A further problem arose in respect to Mr Tran. I was told that there was some suggestion that he was disputing the fact that he had any knowledge that the substance that police found at the Keswick Railway Station was heroin, or indeed was an illegal drug. That raised issues as to Mr Tran’s plea of guilty.
Whilst these difficulties related to Mr Nguyen and Mr Tran I was asked not to delay the hearing of sentencing submissions on behalf of Mr Kim Tran until issues arising in respect of the other two men were resolved. Accordingly, I heard sentencing submissions on behalf of Mr Kim Tran on 21 March 2001. At the conclusion of those submissions on that date I was asked by the Crown Prosecutor to hear evidence as to the status of Mr Kim Tran in the heroin structure, and as to where exactly in the heroin chain he might have been operating. I indicated that I would hear that evidence. I heard evidence on 11 April 2001. Following further submissions as to the sentence of Mr Kim Tran I remanded him on bail for sentence on a date to be fixed. I deal with his sentence separately from these reasons, and separately from the sentences of Mr Tran and Mr Nguyen.
Since March 2001 the sentencing process in respect of Mr Tran and Mr Nguyen has been a long and complex one. It is not necessary here to go into the detail of what occurred, but the difficulties related principally to the position of Mr Tran. I was told at a quite early stage that the Crown accepted that Mr Nguyen should be sentenced on the basis that he was a courier of the four blocks of heroin from Sydney to Adelaide. Notwithstanding that acceptance, the Crown made it clear that its position was that Mr Nguyen was a courier at a very high level within the heroin trade in Australia.
On 3 July 2001, after a number of attendances before me on behalf of Mr Tran and Mr Nguyen, I was informed that Mr Tran’s advisers had been instructed not to seek to change his plea of guilty. I was told that he wished to have the matter disposed of in accordance with his plea. I was also told that there was some hope, if not expectation, that there may be an agreed basis of Mr Tran’s plea for the purpose of sentencing.
On 19 July 2001 I was informed that there were a number of matters which remained in dispute, and that it was anticipated that there would be a disputed facts hearing in respect of Mr Tran’s position. The Crown Prosecutor asked for some information that would indicate that the elements of the offence against Mr Tran were made out, and would thus support his guilty plea. I was told by Mr Tran’s counsel that it was admitted that his client was involved in the handling or packaging of the four blocks of heroin; that he knew, when he was handling the heroin at the time his fingerprints were placed on the packaging materials, that he was dealing with an illegal substance; and by the time of his arrest in Adelaide there was no doubt in his mind the substance was heroin. Upon that intimation the Crown Prosecutor was satisfied, as I was, that Mr Tran’s guilty plea could stand.
The Crown Prosecutor then outlined to me the factual matters that she anticipated were going to be in dispute. One of those was that the Crown’s position was that Mr Tran was aware at all times that the blocks were heroin and that the level of Mr Tran’s criminality was particularly high. It was the Crown’s position that Mr Tran was towards the top of the hierarchical structure of heroin dealing. The Crown Prosecutor also informed me that the Director took issue with a number of matters contained within a report obtained from a social worker, Mr Christopher Colgan, on behalf of Mr Tran. In particular she took issue with Mr Colgan’s comments as to Mr Tran’s cardiac condition and any cognitive impairment suffered by Mr Tran. Finally, I was informed by the Crown Prosecutor that issue was taken with a letter written by Mr Nguyen and forwarded to the Director’s office being tendered on behalf of Mr Tran. It was submitted that in the event that there was any reliance by either Mr Tran or Mr Nguyen on that letter the Crown would review its position in relation to the basis of sentencing submissions on behalf of Mr Nguyen. It was submitted that if Mr Tran wished to rely on the contents of that letter its author, Mr Nguyen, should give evidence. It was made clear before me that it was not Mr Nguyen or those representing him who were seeking to put that letter before me or to rely on it. I was informed by counsel for Mr Tran that he would seek to tender the letter as proof of the facts contained in it and rely on it because he said it rebuts any inference or suggestion that Mr Tran is high up in the hierarchy of drug dealing, and it rebuts any suggestion that there was a level of collaboration between Mr Tran and Mr Nguyen.
Following a short adjournment I was told by counsel for Mr Nguyen that his client was prepared to give evidence. The matter was adjourned to 2 August 2001 for the purpose of taking evidence.
On 2 August 2001, before Mr Nguyen gave evidence the Crown Prosecutor called Detective Terry Harding. I refer to his evidence in more detail later but the thrust of it was to indicate what the various tiers within the drug distribution chain within Australia were, and that the importation of four 350 gram blocks of heroin into Adelaide in July 2000 was a very significant importation of that drug at that time. He also gave evidence of his views as to the significance of where Mr Tran’s fingerprints were found on the packaging materials used to package the blocks of heroin.
Following Detective Harding’s evidence Mr Nguyen gave evidence. It suffices at this stage to note that the effect of Mr Nguyen’s evidence was that someone he had met in an hotel in Sydney several weeks before 21 July 2000 asked him to bring four blocks of heroin to Adelaide. He would be paid $2000. Arrangements were made for that person to meet Mr Nguyen at a Bankstown restaurant. That occurred and the person from the hotel gave Mr Nguyen two packages. One contained the heroin and some packaging materials, and the other contained a scale and a heat sealer. The person from the hotel then left the restaurant. At that stage Mr Nguyen telephoned his uncle, Mr Tran. He asked him to come to the restaurant. His purpose was to seek Mr Tran’s help in packaging the heroin. Mr Tran attended at the restaurant and was asked by Mr Nguyen to package the heroin. Mr Tran left the table and went up some stairs in the restaurant. He returned with the heroin packaged and sealed within two shrimp cracker bags and two candy bags. Mr Tran then drove Mr Nguyen to the place where Mr Nguyen was staying. Mr Nguyen put all the heroin in a cupboard in the bedroom of some other person who was living at that house. Mr Tran then helped Mr Nguyen purchase a rail ticket to Adelaide and he further agreed to meet Mr Nguyen at the railway station in Adelaide to purchase a train ticket for Mr Nguyen’s return to Sydney. Mr Nguyen’s evidence was that Mr Tran asked him what was in the packages but he did not tell his uncle. Mr Tran purchased a ticket for Mr Nguyen at the Keswick Railway Station when he went there to meet the train. Police arrested the three men at the railway station.
The evidence proceeded throughout 2 August 2001 and 3 August 2001. At the commencement of the hearing on 3 August 2001 I was informed for the first time that it was intended that Mr Tran also give evidence. He did so at the conclusion of Mr Nguyen’s evidence.
Mr Tran’s evidence was to the same effect as Mr Nguyen’s. He said his nephew had asked him to come to a restaurant in Bankstown and when he arrived he had asked him to do some packaging. Mr Tran said that because his nephew had asked him he agreed to help. Mr Tran took all the white powder and the packaging materials and the heat sealing equipment upstairs to a room where alone he packaged the white powder. He packaged it to the form in which it was when seized by police. That is, each block had a number of layers of packaging, and each was contained in cracker or candy packet which had been resealed. In one of the cracker packets were individually wrapped coffee sweets. Mr Tran’s evidence was that he then went back downstairs to the dining room of the restaurant and returned everything to Mr Nguyen. Mr Nguyen then told him that he, Mr Nguyen, was going to Adelaide. Mr Tran helped Mr Nguyen to obtain a rail ticket from Sydney to Adelaide. Mr Tran said that it was his intention to go to Adelaide for a holiday at the same time as Mr Nguyen was going. He agreed to meet Mr Nguyen at the railway station in order to purchase for Mr Nguyen a ticket for Mr Nguyen to return to Sydney by rail. He said he had done that and was intending to leave the other two men at the railway station and go about his own business when he was arrested by police.
Mr Tran’s evidence ultimately concluded on 17 August 2001 when the hearing had resumed after 3 August 2001. On 17 and 24 August 2001 I also heard evidence from a social worker, Mr Christopher Colgan. He was called by counsel for Mr Tran. On 3 October 2001 Mr Colgan resumed his evidence and I also heard evidence from a clinical psychologist, Mr Richard Balfour, called by the Crown Prosecutor. On that same date I heard final addresses by counsel for both Mr Tran and Mr Nguyen, and by the Crown Prosecutor.
It was accepted by counsel for Mr Nguyen that his client had been drawn into the dispute as to the factual basis for sentencing by virtue of the fact that both his client and Mr Tran had given evidence. That concession was properly made because, whilst there apparently was some agreement between those representing Mr Nguyen and the Crown that the involvement of Mr Nguyen was no more than as a courier, Mr Nguyen’s own evidence was to the effect that he had involved his otherwise innocent uncle in a serious drug offence. More importantly, on his own evidence, he was asked not merely to courier packaged heroin to Adelaide, but to package it before transporting it. It was submitted that if I do not accept Mr Nguyen’s evidence as to his role, that does not necessarily prove that Mr Nguyen was more than a courier. Mr Nguyen’s counsel pointed to other evidence that indicated that his client was no more than a courier. I remanded Mr Nguyen and Mr Tran in custody for sentence.
I have already referred to the effect of the evidence in broad terms. I now refer to that evidence in more detail.
Detective Terry Harding
Detective Harding had many years experience in drug investigation, had attended a number of courses in relation to drug related activities and had contact with other law enforcement agencies within Australia concerned with drugs. He was familiar with the importation of heroin into Australia and into South Australia, and was also familiar with pricing and packaging of heroin. He had access to considerable intelligence in respect of the heroin trade in this country, in particular through numerous surveillance operations and contacts with informants.
He said that the vast majority of heroin imported into Australia comes from south-east Asian countries, and the bulk of it is imported by organised criminal groups based in Sydney which had overseas contacts, particularly in Hong Kong. The importers are mainly Chinese organised crime groups based in Sydney. The drug comes into this country in various ways. Ninety-five percent of the heroin that comes into Australia comes in the form of 350 gram or 700 gram blocks. When imported they are normally of very high purity with levels up to 90% to 98% pure heroin in compressed blocks. They often have on them a red stamp with Chinese writing. These types of importations range from 15 to 20 kilograms up to hundreds of kilograms at a time. The distribution network in Australia then commences from Sydney. The Chinese importers do not normally get involved in the distribution of the drug after its importation into this country.
The imported blocks are sold by the Chinese importers to those involved at the next tier. This next tier is the top level of the distribution market in Australia. Comprised within it are normally Vietnamese groups involved in high level heroin distribution. These groups buy blocks direct from the importer that are still packaged and stamped. They then sell the blocks in the same form in which they buy them from the importer to the next distribution level down, with their profit margin added. Alternatively, they will unpackage the blocks, cut the almost pure heroin with a diluting agent such as glucose, and then recompress the resulting cut heroin into block form and repackage it using plastic and sticky tape. This results in blocks of cut heroin, which are essentially in the same form and weight as they were when originally imported. The only difference is that they now contain heroin which is between 40% to 50% percent purity.
The majority of the heroin in that form would be sold in Sydney, but it is also distributed from Sydney to other places in Australia, including South Australia. The heroin which is sold to South Australian wholesalers is sold by the Vietnamese dealers. Detective Hardy said it was unusual for a wholesaler in Adelaide to get more than two blocks at a time. That was because block heroin at that purity is such a large amount. Four blocks of heroin at that purity would be enough for the entire Adelaide market for two or three weeks. He said that the next level down, being the wholesalers in Adelaide, would break up the heroin probably into ounce chunks, and would sell these ounces to a network of fairly well-trusted customers. Once the ounce dealer gets it, the heroin can either be cut again or not. From the ounce dealer to street level there could be anything from two to five levels before it actually gets to the user.
Detective Harding said that heroin which is 50% pure is either one or two steps from the importer. The blocks of heroin that came to Adelaide on 21 July 2000 were four 350 gram blocks of approximately 50% purity and, accordingly, they would have come from Sydney from a very high level, one or two steps from the importer. He said the subject heroin would not be any more than two steps from those who imported it into this country. His experience was that people in the Asian community in Sydney are the only people who are involved at that level. They would be trusted by the people from whom they were buying the heroin, and they would only seek assistance at their level from trusted people within their communities. He said that block heroin has only been seen in Adelaide in the last three years.
Detective Harding described the four blocks of heroin that were seized at Keswick. Mr Tran’s fingerprints were on the plastic wrapping seen in photograph 10 of Exhibit SP2. Detective Harding said that Mr Tran must have touched that packet before it went into the candy packet but he was not necessarily present when the block was pressed. Mr Tran’s fingerprints were also on the sticky tape depicted in photograph 20 of Exhibit SP2. Detective Harding said Mr Tran would have been present when the block was pressed, because it was unlikely to have been transported with the very flimsy plastic sheet next to the heroin. Mr Tran’s fingerprints were also on the plastic seen in photograph number 28 of Exhibit SP2. Detective Hardy said that this plastic might have been one step further along. He said the sticky tape layer is the crucial one. Mr Tran’s prints were also on the outside of one of the foil packets seen in photographs 15 and 16 of Exhibit SP2. Detective Harding commented that once it had been packaged for transportation to South Australia Mr Tran had come in contact with it.
Detective Harding said that the little packages seen in photographs 2 and 3 of Exhibit SP2 are a strong smelling coffee-type lolly that is put in the package to disguise any smell of the blocks of heroin.

Detective Harding described the arrival of the Indian Pacific at Keswick. When the three men reached the vehicle in the car park, Mr Nguyen got into the rear passenger’s seat, Mr Kim Tran got into the driver’s seat and Mr Tran got into the front passenger’s seat. The heroin blocks in the shopping bag were in the back seat. They were put there by Mr Nguyen. After the heroin was found in their presence, Mr Tran took a jump at Mr Nguyen and tried to head butt him.
Detective Harding said that a 350 gram block of heroin is potentially worth up to one million dollars on the street. The four blocks had a potential street value of up to four million dollars. It was most unusual to see that amount of heroin come into South Australia at the one time. It was, at the time, the largest seizure of heroin that was destined for the streets police had made in South Australia.
Under cross-examination by counsel for Mr Nguyen, Detective Harding said that he regarded Mr Nguyen as the courier. He didn’t attribute to Mr Nguyen a level of involvement more than that. Although he couldn’t be certain, Detective Harding said that, because the weights and percentages of heroin in each of the blocks were so very close, they each came from one block.
Under cross-examination by counsel for Mr Tran, Detective Harding said:
Given the overall circumstances, that his (Mr Tran’s) fingerprints were on the inside of the packaging, and that he’s arrived at the station and has already met with who we say is the intended buyer of at least some of the heroin, and his behaviour, buying the ticket for the young fellow to go back, I’d say that he’s at that level in Sydney that he’s basically the organiser of this job.
Detective Harding said he didn’t know whether Mr Tran was paid money, but couriers that get on the train are paid $1000 - that’s the going figure to bring some heroin to South Australia. He said his opinion was that, because he was the organiser of the transportation, Mr Tran’s payment was going to be by way of profit, not by way of payment.
Detective Harding agreed that it was unusual to find fingerprint evidence on packaging of heroin at that level. His perception was that people at that level would be a bit more careful. He said his view was that these packages were destined for the highest level dealer in South Australia. Perhaps only half a dozen or so dealers would take even one of these blocks.
Detective Harding confirmed his view that because Mr Tran was involved in the packaging, he was involved either at the first or second tier or step from those who were involved in the importation stage. His opinion was that there was a very good chance that, because of his fingerprints on the sticky tape, Mr Tran would have been present when that heroin was actually pressed.
Detective Harding agreed that it was unusual for a high-level dealer to come from Sydney to meet the courier, but it was not unusual for very high level people to come to talk money with purchasers. It is unusual, however, for them to go anywhere near the heroin.
In re-examination Detective Harding said that police are well aware of millions of dollars in heroin money leaving this country to support families in Vietnam.
Detective Harding said that the only thing he could think of as to why Mr Tran met the courier was because there was such a large amount of heroin. Mr Tran came ‘here to oversee this thing and make sure everything went okay and probably to collect the money because ... they wouldn’t trust a courier with that sort of money’. Detective Harding said that he believes that Mr Tran operates at a higher level than Mr Kim Tran.
Giang Son Nguyen
When Mr Nguyen was called his counsel indicated that he was calling him because he understood the crown wanted to tender a letter written by Mr Nguyen.
Mr Nguyen said that at the time of his arrest he was 19 years old and had lived practically all his life in New South Wales. He said that at the time he made the trip from Sydney to Adelaide he was going through a ‘downfall’ in his life. He started drinking a lot and used to go to the hotel. He became friends with a man from the hotel who offered him some work. He said if he did a trip for him he might pay him some money. He was to take some ‘stuff down to Adelaide’ and he was to be paid $2000. He was given $1000 ‘up front’ but he didn’t get the other $1000. He said he had had the stuff a couple of days before he got on the train at Sydney. He did not touch the stuff. His job was just to take it down to Adelaide. He was given a mobile phone and was told to go to the Casino or somewhere, and wait for the phone to ring. He said that when he got to Adelaide he saw Mr Tran. He was expecting to see Mr Tran. Mr Tran is his uncle. He said he has shared a cell with Mr Tran in the Adelaide Remand Centre. He there wrote a letter dated 7 February 2001.
The letter reads:
‘To whom it may concern,
My name is Son Giang Nguyen, on the 21st of July of the year 2000 I was charged in “taking part in the sale of heroin” along side Tran Quoc Thanh. In this case I was asked to take the packedge (sic) to Adelaide, Tran Quoc Thanh did not know anything about my situation.’
Mr Nguyen said he wrote this of his own volition because he ‘felt guilty about getting my uncle involved’. He got him involved because he asked him to help him with the package of stuff. ‘When the other person asked me to take the stuff down to Adelaide, I asked my uncle to help me’. He said that he was not prepared to say who the other person was. That person gave the heroin to him in two large bags and told him to package it. He rang his uncle, and because he and his uncle help each other out, he asked his uncle to package it. His uncle, Mr Tran, did so. Mr Nguyen didn’t do any packaging. He said he didn’t help his uncle because he was afraid ‘of just being near it and stuff, of being around it’. Mr Tran was asked about his letter. He had written that Mr Tran did not know anything about his situation. He explained that what he meant by that was that Mr Tran didn’t know about what he was going through in his personal life, that is, the turmoil in his personal life.
Mr Nguyen was then cross-examined by the Crown Prosecutor. He said that at the time of the offending he saw Mr Tran roughly three or four times a week, but he was not really aware of what he was doing for a living at that time. He knew he used to work in a factory and drive trucks.
Mr Nguyen knew the person at the hotel only for a couple of weeks and didn’t know what he did for a living. He didn’t know where he lived. He was aware that the packages he was to carry would contain heroin. The man at the hotel asked him to carry the package about a week and a half into the two week period that he had known him at the hotel. Mr Nguyen came to Adelaide about two to three weeks after that conversation occurred. He was asked:
QWhen he told you that it was heroin that he actually wanted you to transport to Adelaide were you shocked.
ANot really
QHave you ever had any involvement with heroin before.
ANot really, no.
QAnd you don’t use heroin.
ANo.
QDo you know anybody else who is involved in heroin dealing.
ANot really, no.
QSo although you’ve never had any exposure to heroin before, you’ve met a man at a pub who you have known for two weeks, he suggests that you transport heroin from Sydney to Adelaide for him and you are not even slightly surprised at that request.
ANot really, no.
The person from the hotel later told him to meet him at a restaurant in Bankstown. He thought he met him on a Saturday, about three days after the initial conversation about carrying the package. At the restaurant the man ‘gave (him) two bags and told (him) to pack it’. They were normal white plastic shopping bags from the supermarket. In one bag he could see packaging, and the other contained scales and a heat sealer. The heroin was in the same bag as the packaging. The heroin was already wrapped in plastic. He said he didn’t take the blocks of heroin out of the plastic shopping bag. The packaging ‘was like lollies and chips and stuff’. He couldn’t remember whether they were full. They didn’t seem open. At the Bankstown restaurant the man from the hotel asked him to pack the heroin. He said there’s a heat sealer in there. He said to just put the blocks into the packets and seal them up. That was all he said. Mr Nguyen said he had never used a heat sealing machine before, but it looked like one and it didn’t look too hard to use. He didn’t know how he knew what one looked like. The man from the hotel gave him a mobile phone and told him that when he got to Adelaide to ‘go to a shop or Casino and wait for it to ring'. He told him to catch a taxi. He told him to go to Adelaide by train and he gave him a date. He might have told him how to get back from Adelaide, but he couldn’t remember. He knew he was going to get back by catching the train back. At some point the man from the hotel told him that he would be catching a train back to Sydney. He didn’t give him a date. He gave him $1000 ‘up front’. Mr Nguyen said he left for Adelaide two days after this meeting at the Bankstown restaurant.
When the man left the restaurant Mr Nguyen remained and rang his uncle Mr Tran. He rang his uncle because he wanted him to help him. His uncle came to the restaurant. He told his uncle to help him pack something. He asked Mr Tran because he wanted his help - ‘I wasn’t too good to do it on my own’. He didn’t try to do it on his own. Even though he thought the heat sealing machine looked easy to use, he rang his uncle to come and help him. At the restaurant his uncle asked him what it was that was to be packaged, but he didn’t really talk to his uncle that much. He wasn’t really specific about what it was. He didn’t tell him the blocks were heroin. He just gave him the bags. His uncle looked inside. His uncle asked him what was in the bag and he just brushed off the question. He didn’t know why he brushed off the question. He said he brushed it off by just not answering the questions. He said nothing.
Mr Nguyen said that there were other people dining in the restaurant. It was pretty much full of people. He said Mr Tran went upstairs to the toilets with the two bags. He didn’t go with him. Mr Tran was not upstairs for long. He came downstairs with the bags. Mr Nguyen didn’t look in the bags, but he said there was still stuff in them. When Mr Nguyen looked in the bags he didn’t think he noticed any packaging materials like plastic or sticky tape. He couldn’t remember. He said Mr Tran was away for 15 to 20 minutes. Mr Tran told him he had packaged them. Mr Nguyen had given him no instructions about how to package them.
Mr Nguyen said he knew that it was heroin that Mr Tran was packaging. He was worried that someone might go to the toilets and see Mr Tran with the heroin, but couldn’t remember if he made any efforts to keep a lookout. He was just sitting at the table eating. When Mr Tran got back to the table he put the packages under the table. Mr Tran finished eating and then they both left the restaurant. Mr Tran drove and then they threw the heat sealing machine away. It was thrown in a garbage bin behind the Westfield Shopping Centre at Bankstown. He said he threw it away because there didn’t seem like there was any use for it anymore. He agreed that it seemed that he was in a hurry to get rid of it, but he didn’t know why. The scales were in the same bag, but they kept the scales. He did that because the man from the hotel had told him to take the scales to Adelaide ‘with the other stuff’. He then went back to his friend’s place where he was staying, and Mr Tran went off to work. He put the heroin in the closet in his friend’s bedroom at the place at which he was living. He said it remained there for one or two days, whilst someone else was living in that room.
Mr Nguyen said that the man from the hotel suggested to him that he should buy a ticket to Adelaide. He did not, however, purchase a ticket himself. He did not do so because Mr Tran purchased the ticket for him. Mr Tran purchased the ticket around about the day after the meeting in the Bankstown restaurant. Mr Nguyen asked Mr Tran to purchase the ticket because he didn’t know where to purchase the ticket. He thought Mr Tran would know how to purchase a ticket because Mr Tran knew more than he did. He had asked Mr Tran at the Bankstown restaurant to purchase a ticket for him. He gave Mr Tran the date for which he should purchase the ticket. It was the date the man from the hotel had given him. When he asked Mr Tran to purchase the ticket Mr Tran had asked him what it was for. He had said he was going down to Adelaide. He couldn’t remember what Mr Tran said to that. When Mr Tran asked the purpose of his trip, those questions were brushed off by him. He said he knew no-one in Adelaide. He said he gave Mr Tran some money out of the $1000 he had received from the man in the hotel. He couldn’t remember, but it was about $100. He didn’t know why he gave him $100 but he didn’t think a ticket would cost that much. He said he expected Mr Tran to get a one-way ticket. He couldn’t remember, and didn’t know, why he had asked him only to get a one-way ticket. He thought he could buy a ticket back. He was then asked:
QSo when you got off the train in Adelaide you were going to purchase another ticket to get back to Sydney.
A My uncle was going to purchase the other ticket, return ticket.
...
QSo you discussed with Mr Tran at the Bankstown Restaurant that he was going to purchase another ticket for you at some stage to get you back to Sydney.
A Yes.
He didn’t think he had any other conversations with Mr Tran about the purchase of the ticket. He then said he had asked Mr Tran to buy him a ticket to get him home again to Sydney. He agreed that this evidence indicated that he knew Mr Tran was going to be in Adelaide. He was asked what Mr Tran was going to Adelaide for and he said he wasn’t sure, he didn’t know. He thought it was just to see a friend. When he found out Mr Tran was going to Adelaide he got him to take the scales down. Mr Tran didn’t ask him what they were for. He asked Mr Tran to do this because he didn’t want any extra luggage. He was asked why he didn’t do it himself and he said he didn’t know, he couldn’t remember. He gave Mr Tran the scales when Mr Tran dropped him off at his friend’s place. He said he arranged to meet Mr Tran in Adelaide so Mr Tran could give him the ticket to get back to Sydney. Mr Tran was to meet him at the train station. Mr Nguyen said that Mr Tran was going to buy him the ticket so that he could go back to Sydney. Between the time Mr Tran dropped him off at his friend’s place and when he got on the train he saw his uncle again when he came round to his place and gave him the ticket. That was the day after they were at the Bankstown restaurant. It was roughly three or four days before he left to come to Adelaide. He said he didn’t know why Mr Tran didn’t buy him a return ticket. It was then put to him that what actually happened was that Mr Tran purchased a ticket for him on the day that he left Sydney and gave it to him just prior to him getting on the train. He agreed that that was the case. He agreed that his evidence that he had been given the ticket at his house was untrue. He had given that evidence because he couldn’t remember. He said that Mr Tran picked him up from his friend’s place and drove him to Central Station and purchased the ticket there. That was the day that he travelled to Adelaide. He agreed that he didn’t have any clothes or toiletries or anything on the train. He agreed that he did not expect to stay in Adelaide for very long. He was hoping to come straight back to Sydney. When Mr Tran bought the ticket in Sydney, Ms Ann Nguyen was not present, although the ticket was purchased in her name. It was purchased on Ms Nguyen’s pension card at a discounted price. He was hanging around the area of the ticket office when his uncle bought the ticket.
It was put to Mr Nguyen that the phone he had when he was arrested in Adelaide was registered to 119 John Street, Cabramatta. He said that address was not familiar to him. He then volunteered that it was a known brothel. He couldn’t explain why the phone in his possession and Mr Tran’s phone were registered to that same address.
Mr Nguyen said that when he got to Adelaide he saw Mr Kim Tran at the Keswick Railway Station, but he didn’t know him. He said he wasn’t aware that the same heat-sealing machine was used to seal the four packets that he was carrying and the packet found at Mr Kim Tran’s premises at Pennington.
Mr Nguyen said that he did not know, or could not remember, what he had discussed with Mr Tran about this matter. He had shared a cell with him at the Remand Centre for some time. As far as the alleged head-butting incident at the Keswick Railway Station was concerned, Mr Nguyen thought Mr Tran was just coming to talk to him. He said he couldn’t remember whether Mr Tran appeared angry, but he didn’t think so.
Than Quoc Tran
Mr Tran gave his evidence through a Vietnamese interpreter. He said he was 33 years old. He said he went to a restaurant in Bankstown when his nephew rang him and asked him to go there. Mr Nguyen didn’t tell him why he was asking him to go there. He then said his nephew told him he had something and that he needed him to help him pack it. When he arrived he saw two or three bags under the table. Mr Nguyen told him to wrap something for him. Mr Nguyen told him to help him to wrap something. Mr Tran asked him what it was and his nephew didn’t say anything - ‘he just smiled’. Mr Tran then went upstairs and in a vacant room upstairs he did the ‘bagging’. He said he went to the vacant room, ‘put some sticky tape outside and then put the bag and then I brought them out to’ his nephew. He didn’t know what was in the bags when he went up the stairs. ‘There was a big white lump in the plastic bag and (his nephew) told him to wrap them’. He ‘wrapped them with the sticky tape and then put them in the plastic bag, and then a hot machine to press’. He just did what he was told to do. There were four white lumps in the bag. There was also ‘some lolly and sticky tape’. There were ‘two lolly bags’ and they were both already open. There was lolly in both bags. The white blocks were wrapped by a thin plastic. He wrapped them with sticky tape because he was told to wrap them with the sticky tape. He ‘then took the white and put in the lolly bag. I took the lolly out and put the white lump in the lolly bag’. He thought he wrapped something else and then put it in the chip bag. He had two lolly bags and two chip bags. They were already open. After he put a block in the two lolly bags and the two chip bags, he used the heat machine to press it. The heat machine was easy to operate - he just plugged in the power cord and put the bag on the machine and just pressed it down. He said he had done that before at a food factory. He said he put some lolly in the lolly bag with the white lump. He only put lollies in one of the lolly bags. He said he didn’t know why he did that. He was again asked why he put loose lollies in one of the lolly bags before he sealed it with the white block in it. He answered - ‘At that point I was in a hurry and I just don’t know what I’m doing. I just put them in there.’
Mr Tran said that when he was going upstairs to do the packaging he didn’t know he was carrying heroin. He had never had any dealings or contact with people in the illegal drug industry in Australia. He said he was nearly frantic when he found out in Adelaide that it was heroin. He denied leaping towards his nephew in what appeared to be an angry gesture. He said - ‘I just stayed where I was’. He said he didn’t move towards his nephew at all. He also did not put his face toward his ear as if to speak to him. He agreed he was very angry, because he had got involved in heroin. He was asked:
QIn relation to this whole case, packaging, travelling to Adelaide, was there any money to be made in it for you.
A      I got nothing.
Q      Were you at any time promised any money.
A      Not at all. I just help him.

He said he helped him because in the past he had helped his nephew.
Mr Nguyen’s counsel cross-examined Mr Tran about his evidence as to whether he got anything out of what he did. Mr Tran said that his nephew had told him that his nephew had got something, ‘but he didn’t give me anything yet’. When it was put to him that he (Mr Tran) was promised $1000 after it was all finished, he agreed. He added, however, - ‘he didn’t give me the money yet’. He agreed that after everything finished he would get the money. He still expected to be paid $1000 by Mr Nguyen.
Under cross-examination by the Crown Prosecutor Mr Tran said that Mr Nguyen specifically asked him to use sticky tape to wrap the lumps. He then said that Mr Nguyen didn’t tell him anything. He just told him to go upstairs and do the packaging. He was asked:
Q You didn’t say to him ‘why don’t you do it yourself?’
AI think it is a simple thing, and he asked me to help him and I helped him. If I knew it was heroin and then I would have worn a glove
Mr Tran said he had asked Mr Nguyen what they were, but he didn’t say anything. He was asked if he thought it was strange that his nephew was asking him to wrap the blocks and he replied - ‘I think this is a simple thing and he just asked me to help him and then I helped him’. No-one had ever asked him to wrap blocks of white powder before.
He was asked:
QDid you ever wonder, after you had done this simple task, why Mr Nguyen had rung you, got you to drive from your home to the restaurant to do the entire task yourself when anyone could have done it.
A      But there is nothing to me when he asked me to help him, I just help him.
QI can understand that, but did you wonder after the job why he hadn’t simply walked up the stairs himself and spent 10 minutes doing what you did.
AHe told me he didn’t want to take the stuff home, and I can do it here for him.
Q      When did he promise to pay you money.
A      He will pay me as soon as he get back from Adelaide.
Q      When did he tell you that.
A      At the restaurant.
He was asked why he went upstairs to do the packing. He answered - ‘He gave me that stuff and he told me to do it right there and so I have to do it’. He said his nephew told him to do it straightaway. He was asked if he was suspicious about what was happening, and he replied ‘I just help him and I got everything and it took him home and I have no suspicion’. He said he had no suspicion at all that the white powder might be drugs. He said he didn’t know that it was heroin. If he knew it was heroin, he would wear a glove. He thought the blocks were some kind of food, ‘some kind of lolly in Vietnam - sorry, biscuit in Vietnam’. He just did what he was told and he didn’t know anything.
At this point in his evidence Mr Tran was further examined by his own counsel. He said that when he first saw the powder, he thought it was some kind of biscuit and then he thought that maybe it was something illegal. When he did the wrapping he thought it was an illegal substance, but he didn’t think it was heroin.
Under further cross-examination by the Crown Prosecutor he said that he was very anxious about someone seeing him with an illegal drug when he was in the room where he was packaging the blocks. He didn’t want to take it home, ‘otherwise I will be caught by police on the way home’. He didn’t say anything to Mr Nguyen about what he had thought upstairs because he had earlier asked, and Mr Nguyen had not answered, and he didn’t want to ask anymore. He said he knew he had been given some drugs and asked to package them by his nephew, and he had given them back to him. He was asked if he felt any responsibility towards his young nephew. He said - ‘I don’t feel any responsibility because he is old enough. He can earn his living now.’ He didn’t think he should try and stop his nephew.
Mr Tran said that Mr Nguyen gave him instructions about the sticky tape and the plastic and the paper bag. He said:
AWhile we were seated and have something to eat he told me to pack it by the sticky tape and put it in a bag, something. If you don’t believe me just ask me again. I didn’t tell any lie.
QMr Nguyen says he asked you to pack the heroin for him but he didn’t really talk about it much more.
AYes, he told me something but I think he forgot.
He was told that ‘there is a lump of white stuff in the bag, sticky tape it, wrap it and then seal it.’ Mr Nguyen told him that while they were sitting in the restaurant having something to eat, ‘otherwise I didn’t know how to pack it.’ Mr Tran said that the only illegal drug other than heroin that he knew at that time was marijuana.
At the restaurant Mr Nguyen told him that he didn’t know where to buy a train ticket to Adelaide. Mr Tran asked him why he needed to buy a ticket, and he said to go to Adelaide for some business. He didn’t say what business. He thought Mr Nguyen would carry something illegal, but he didn’t think it was heroin he was carrying to Adelaide. He was asked if he thought his nephew might get arrested for doing that. He said - ‘I didn’t know. That is his business.’ Mr Nguyen gave him $100 for Mr Tran to buy the ticket for him. Mr Tran asked a friend about the price of a ticket and he was told about a couple of hundred dollars. Because he didn’t have enough money he used Ms Ann Nguyen’s pension card, because with that the ticket was half price. He said - ‘If I am a dealer I don’t want to get my girlfriend in this business. ... if I was a drug dealer I would be rich and then I can afford the ticket from Sydney to Adelaide.’
He was asked where he bought the ticket. He replied at the train station in Sydney. He said he bought the ticket when he was by himself. He then said he telephoned and booked the ticket. He agreed that Mr Nguyen’s English was better than his. He said he could easily say ‘I want to buy a ticket’. He didn’t say to his nephew ‘buy your own ticket’ because he had asked him to buy it for him. He said his nephew didn’t know how to buy it - where to buy it. He then said that he spoke on the telephone about using a pension card.
Mr Tran said that Mr Nguyen was at the train station when Mr Tran paid cash for the ticket. He had taken Mr Nguyen to the train station. He agreed that that was on 20 July, and he agreed that he flew to Adelaide on 21 July. He was asked his purpose in going to Adelaide and he answered ‘I have two air ticket about two months ago, we intend to come to Adelaide for holiday’. He said he went to the Casino when he arrived in Adelaide, and by chance met Mr Kim Tran’s wife there. After talking for a while he asked Mr Kim Tran to take him to the train station, because he didn’t ‘know Adelaide very much’. He agreed that he had told Mr Nguyen that he would meet him at the train station in Adelaide. He was asked why he made that arrangement and he answered - ‘Because I have two ticket with me, so by this time, I have a chance to come to Adelaide’. He said the friend with whom he was going to come to Adelaide was Nick Kuong. Mr Kuong had agreed that Mr Tran could use his ticket. That was about two months before he was arrested. He agreed that at the time he was told by Mr Nguyen that Mr Nguyen was going to Adelaide he already had a ticket to travel to Adelaide to be there at the same time as Mr Nguyen. He later said that he changed the date of his flight when Mr Nguyen told him he was going to Adelaide. When he found out Mr Nguyen was travelling to Adelaide, he changed his ticket to 21 July 2000. He changed it to that date because he knew Mr Nguyen was going to be in Adelaide. He was asked why, and he answered - ‘Before he went to Adelaide on the Wednesday he told me he would reach Adelaide by Friday and I told him I will come to Adelaide the Friday. By the way I carry a scale for him.’ He was asked if he came to Adelaide to get paid the $1000. He answered - ‘First I come here for holiday and, second, I took the scale for him and I didn’t know anything else.’ He said he met Mr Nguyen because Mr Nguyen asked him to take the scale with him ‘so I came to Keswick to meet him just to deliver the scale’.
Mr Tran said that Mr Nguyen got on the train for Sydney two or three days after the occasion in the Bankstown restaurant. Having said that, it was put to him that, if Mr Kuong’s ticket was booked for a date in June, it would have expired by the time Mr Tran found out Mr Nguyen was going to Adelaide. He answered - ‘At first I think I throw it away but later I found it, I can book it again.’ He then said he asked the airlines to delay the flight for him a couple of times. He said that he had planned to come to Adelaide on Friday and planned to go back to Sydney on Sunday. He was asked why he had planned such a short holiday. He answered - ‘First, I don’t have any friend here and, secondly, I would like just to look around Adelaide’.
Mr Tran was cross-examined about Exhibit SP7 - the Qantas ticket from Adelaide to Sydney in the name of Tran. He said he had purchased that ticket a long time ago. He said they had two tickets; one under his friend’s name and one under his name. They intended to go to Adelaide but his friend’s wife went to hospital and that was why he didn’t come to Adelaide at that time. He said he bought that ticket some time in June. The ticket indicates that the date of issue was 10 July. He then agreed that it would have been purchased in July. He said he should have flown on 10 July, but he didn’t, and then he had to delay the trip until 21 July 2000. He was asked why he travelled on the ticket in Kuong’s name and he answered that was because when he went to the booking office to change the date to come to Adelaide they told him he could use either ticket, ‘so I make mistake to go to Adelaide by Mr Kuong’s name’.
Mr Tran agreed that when he arrived at the Keswick railway station with Mr Kim Tran he went to the terminal and purchased a ticket. He bought it for Mr Nguyen. When asked why, he answered that before he came to Adelaide Mr Nguyen told him if he was to come to Adelaide he should buy a ticket for him so he could go back to Sydney. He said - ‘When we were in Sydney, Mr Nguyen told me if I got to the train station, just find out what is the latest train to get to Sydney, and when I find out about the ticket, I buy a ticket for him.’ He was asked why he didn’t tell Mr Nguyen to buy his own ticket. He said - ‘by the time I get to the train station, and I buy for him’. He said Mr Nguyen asked him in the Bankstown restaurant to buy a return ticket for him. Mr Nguyen told him at the restaurant that he didn’t know where to buy a ticket. He gave him $100 to get a return ticket, in addition to the $100 he gave him for the ticket to Adelaide.
Mr Tran was asked why he purchased a ticket at Keswick in the name of Mr D Lee. He answered - ‘Because, at the time when I bought the ticket, I was trying to speak English, I was saying the correct word, however, the spelling was wrong and I did not know how to correct the spelling.’ He spoke English and asked the person at the train station to issue a ticket in the name of Mr Nguyen. He did not know why she typed the name Lee. He ‘did not take the nuisance to have it corrected’. He paid cash, it was $100 or something. He used his money because he thought that his nephew would repay him the money. He did not ask Mr Nguyen at the Bankstown restaurant for money for a train ticket from Adelaide to Sydney ‘because it was not a big sum of money’. He thought he would refund it to him. This evidence was contrary to what he had early said.
Mr Tran said that the only reason he went to Keswick was to buy his nephew a ticket. He was asked how he got there and he said that ‘he had a friend of a friend of mine who transported me there’. That was ‘Tran Bang or somebody; I don’t know’. Co-incidentally he met Bang’s wife at the Casino. She contacted her husband, Mr Kim Tran, to take him to the train station. ‘Bang came and he took me to the railway station’.
There was a considerable amount of evidence about the two tickets in Mr Tran’s and Mr Kuong’s names. Much of it was confused and inconsistent. Mr Tran said he threw away the Ansett ticket in respect of which Exhibit P6 was the boarding pass.
When questioned about the two mobile telephones found on him by police, Mr Tran agreed that both were registered to the address of 119 John Street, Cabramatta. He used that address because he went to the ‘dens for fun’. That address was a ‘prostitute den’. He said at the time the telephone was registered, he was asked what address he wanted it to be registered in. ‘Then the owner of the shop also asked me whether I wanted to use that address; namely No. 119’. The shop owner suggested he use that address every time he registered a telephone - ‘he suggested that address to everybody’. He said when he registered his phone he did not use his true name. Mr Tran prevaricated on what name he used and on whether he used a different false name for the two phones. It was put to him that one phone was in the name of Steve Lim. He said that name was not familiar to him and it would have been supplied by a friend of his.
Mr Tran accepted he had said that he brought scales to Adelaide at Mr Nguyen’s request, but he prevaricated as to whether Mr Nguyen had told him why he wanted him to bring scales to Adelaide. He said he just took them for him as requested. He was asked why he thought Mr Nguyen wanted scales in Adelaide and he responded - ‘I did not know anything about that’.
Mr Tran said that he was angry with Mr Nguyen when he was arrested because ‘he put me in that sinful position’. He denied, however, that he did anything at all when the two men were arrested at the Keswick Railway Station. He did not approach Mr Nguyen, he did not even touch him. He said that the incident described by Detective Harding simply did not happen. ‘The thing that you put to me was just fabricated by the police officers’. He said that for the last twelve months he had shared a cell with Mr Nguyen at the Adelaide Remand Centre, but ‘I did not discuss anything with him at all. I only told him that whatever he had done, he should have admitted. ... he should not say things that could be - or could bring injustice on me’. Mr Tran said he did not mention anything about the court matter in relation to this incident. He said he did not know the content of the letter Mr Nguyen wrote. He did say to Mr Nguyen that because he had helped him he ended up in gaol, and that was a miscarriage of justice. He didn’t tell Mr Nguyen to write anything.
I asked Mr Tran about what happened at Keswick. I told him that the evidence suggested that all three men had got into the car in various positions, after Mr Nguyen arrived from Sydney. He said - ‘No. In fact, we were not in those positions yet. I was just opening the door of the car, then the police officers arrived’. I asked if he was going to get in the car, and he said - ‘No. I was only reaching the door of the car. I did not get inside and sit down yet’. He said he had opened the front passenger’s door, but then said he was opening the door on the driver’s side. ‘One door must be opened and the chair must be pushed forward then I could reach inside in the back and get the stuff to give to (Mr Nguyen)’. He said he was speaking of ‘the scale’. He said he wasn’t going to get in the car. He said if the police hadn’t arrived he ‘would have gone back to the Casino to continue with a few games there’, because he still had some chips in his pocket. After that he intended to ask for directions to get to an hotel somewhere nearby to spend the night.
Christopher Colgan
Mr Colgan qualified as a social worker in 1984, with a Bachelor of Arts and Masters in Social Work. He said that his approach in reporting upon Mr Tran was to understand the relationship between the individual in question and his overall social circumstances. He said that involves interviewing the person at length and speaking to people associated with him, including his family, his associates and professional people. It also involves understanding the place where the person lives. To this end Mr Colgan went to Sydney and spent time in the area in which Mr Tran lived. He did not stay in the Bankstown/Cabramatta area because there was some concern amongst Mr Tran’s friends and associates about his safety. Mr Colgan said that problems he encountered in preparing his report were language, the fact that the environment he went to in Sydney was quite an alien environment for him, and that his involvement with people from Vietnam has been very limited. Furthermore, he said he was in the hands of Mr Tran’s friends and associates, and they controlled to a large extent what he observed, what he heard and what people he had access to. His impression was that Mr Tran was considered to be a good and simple man in the sense that he views life simply. The Monks of the Buddhist Temples in the Cabramatta area spoke warmly of him. He understood that Mr Tran was committed to Buddhism and the fundamental principles of Buddhism. He understood there to be a complex web of indebtedness and obligation in the Vietnamese community, and persons managing to come to Australia send money back and also arrange for other members to come to Australia.
Mr Colgan said that what people had been saying to him about Mr Tran was that he is a fairly benign sort of man. He is a man who has a fairly simple outlook on life, that is he tends to approach life and evaluate life on its face value. He qualified his remarks by saying that his observations of Mr Tran have been terribly constrained. Mr Tran has been a resident of the Adelaide Remand Centre and Mr Colgan has had to rely on the opinions of others. He said his feeling was that Mr Tran is easily led. He is a man who is willing to assist where he can and does not actually think terribly deeply about what goes on around him. Mr Colgan referred to what he understood to be alleged against Mr Tran. He said that his understanding was that Mr Tran, in the company of his nephew, transported a bag full of white blocks of powdery matter to South Australia. He approached somebody in a car to hand that over, and at that point police approached him and placed him under arrest. He became enraged and hit his nephew and was then transported to the Remand Centre and spent five days in the clinic, and he collapsed at that stage. Mr Colgan had been told that Mr Tran was involved in the packaging of the white powder, that there was some scales involved, that he was involved in the weighing of the material, and that there may have been a previous occasion when he was involved in a similar activity. He believed that the two men travelled to Adelaide on the train.
Mr Colgan gave evidence of a ‘mini-mental state’ examination he had conducted on Mr Tran. This was the first time that he has conducted such an examination in the context of producing a report for a court. This examination was done by him on 30 July 2001. The reason he did it was because it became apparent to him that the issue of Mr Tran’s comprehension and understanding was becoming a central feature of the court’s processes. It’s importance ‘bears on the assertion that Mr Tran in some way was a major organiser in the entire process’. Mr Colgan said his impression was that ‘in order to be an organiser of a process like that, which requires very high levels of organisational ability, forward planning, astute observation and a very very good understanding of people’s characters and what they’re likely to do, from my contact with Mr Tran I just don’t believe he has the degree available to do that’. Mr Colgan indicated again - ‘I am working on a very limited body of experience and I don’t believe I can actually make statements outside my immediate experience. I defer to the body of the Court and in light of everything that has taken place I understand that what I must be saying might sound terribly implausible but it is simply the strength of what I have experienced’. He said that Mr Tran’s score of 18 out of 30 on the mini-mental state examination ‘strengthened the veracity of my observation and raised with me, again the concern that Mr Tran needs to be more fully assessed in terms of his health and his mental status’.

Counsel for Mr Nguyen submitted that his client should be sentenced on the basis that he was a courier and he had no greater involvement than that. I have earlier referred to Mr Nguyen’s own evidence which, if I accepted it, would suggest that he was more than a mere courier because he played some part in arranging for the packaging of the heroin and the sealing of it within prawn cracker and candy bags.
There were a number of matters in respect of which there was no or little dispute at the hearing before me. They included:
(a)Mr Nguyen caught the Indian Pacific at Central Railway Station in Sydney at about 3pm on Thursday 20 July 2000. He was travelling under the name of Ms Nguyen on a pensioner card. All he was carrying a white plastic shopping bag and a grey zip up ‘bum’ bag which contained a small CD player and some CDs. The white plastic shopping bag contained four blocks of heroin packaged in the way previously described. Their weights and purity were as previously described.
(b)At about midday on Friday 21 July 2000 Mr Tran left Sydney on Ansett flight 239, travelling business class under the name Mr N Kuong. He arrived in Adelaide at about 2pm that day. His only luggage was a small brown leather carry bag. In the carry bag was a small set of scales.
(c)Mr Tran also carried to Adelaide two mobile phones. The same number rang both of them. At least one was registered in the name of Steve Lim. Both were registered to the address of 119 John Street, Cabramatta. That was not Mr Tran’s address in Sydney but the address of a brothel in Cabramatta.
(d)Mr Tran’s thumb and fingerprints were found on various items of wrapping within which three of the four blocks of heroin were packaged. One of his fingerprints was on some sticky tape that was used to secure the inner-most plastic wrapping of one of the blocks of heroin. Mr Tran’s thumbprint was on the outside of the bag that contained scales.
(e)Mr Tran and Mr Kim Tran arrived at the Keswick Railway Station together to meet the Indian Pacific train from Sydney at about 4.45pm on Friday 21 July 2000.
(f)Before the train arrived Mr Tran purchased a ticket at the booking office at the Keswick Railway Station. He did that at 4.48pm on that day. He was issued with a ticket for the Sydney Ghan departing from the Keswick terminal on Saturday 22 July 2000 at 10.10am. The ticket was issued in the name of passenger Mr D Lee.
(g)When arrested Mr Tran was holding a ticket issued by Qantas Airways on 10 July 2000 to travel economy class from Adelaide to Sydney on Sunday 23 July 2000, leaving Adelaide at 12.20pm. The ticket indicated that that departure date and time had changed from the date and departure time as originally issued. The ticket was in the name Mr Q Tran and had been issued by a ticket centre in Sydney.
(h)The same heat sealing device was used to seal the cracker and candy packets containing the four blocks of heroin brought to Adelaide by Mr Nguyen and a chip packet found at the place where Mr Kim Tran was residing at Pennington.
On this largely uncontested evidence, and on a consideration of the whole of the evidence that was before me, both the oral evidence and the depositions, Mr Tran has not satisfied me that his involvement in this offending was as submitted by his counsel. Even allowing for the fact that his evidence was given with the aid of an interpreter I found much of it inherently contradictory or inconsistent. I was convinced that Mr Tran was prevaricating in his evidence on a number of issues. Much of his evidence was inherently improbable and some of it was bizarre. His evidence about what he said happened in the Bankstown Restaurant; about the purchasing of a train ticket for his nephew; as to his reason for visiting Adelaide; and about his activities when he came to Adelaide defy belief and I do not believe his evidence on these matters. I consider that he made up most of his evidence on these topics. I have no doubt at all that his involvement in this offending was much different than what he and his nephew Mr Nguyen said in evidence. In coming to this conclusion I have considered the fact that Mr Nguyen gave evidence that supported the evidence of his uncle. I am satisfied that Mr Nguyen’s evidence was also concocted, probably with his uncle whilst they were together at the Adelaide Remand Centre for several months.
The next question is whether the evidence before me is such that I can draw inferences from the facts as to what were the roles of Mr Tran and Mr Nguyen in this offending. I am conscious of the fact that because I am not satisfied as to what they say their roles were, that does not necessarily lead to findings that their roles were as submitted by the Crown Prosecutor.
The significant body of evidence that I have referred to as being not seriously in dispute has convinced me that Mr Tran’s role in this offending was a significant one. Particularly important are his fingerprints on the packaging of the blocks of heroin; his flight to Adelaide and his planned return to Sydney, his arrival at the railway station at Keswick with Mr Kim Tran to meet Mr Nguyen with the heroin blocks; what he did when he arrived and his conduct when arrested; and the evidence of the use of the heat sealer in relation to the packets Mr Nguyen had and that found at Mr Kim Tran’s house. I reject the evidence of Mr Tran and Mr Nguyen as to the incident at the railway station when the three men were approached by police. I accept Detective Harding’s evidence of this incident, supported as it is by other depositions.
I am not satisfied that Mr Colgan could speak with any authority as to the capabilities of Mr Tran being involved in the higher levels of the heroin trade. Mr Colgan knew little of the heroin trade and his knowledge of Mr Tran himself was limited by language and by what others had chosen to tell him in Sydney and by what Mr Tran has told him in the Adelaide Remand Centre. Mr Colgan fairly acknowledged those limitations. Furthermore, I am not satisfied that the mini-mental state examination and the results thereof give any assistance to me in reaching conclusions about Mr Tran’s involvement in this offending. I consider that Mr Colgan’s evidence is an unreliable basis for any conclusions on Mr Tran’s role.
Detective Harding’s evidence is important and has assisted me in considering and determining the issues before me. I accept all of Detective Harding’s evidence as a reliable basis for my conclusions.
I have concluded, beyond reasonable doubt, that Mr Tran was a major participant within one of the highest levels of the distribution chain within this country in respect of the four blocks of heroin that were seized by police at the Keswick Railway Station. I am satisfied, beyond reasonable doubt, that he was involved in the packaging and the sale and distribution of this heroin to South Australia. I am satisfied, beyond reasonable doubt, that Mr Tran came to Adelaide for the purpose of ensuring that the four blocks of heroin arrived safely and were delivered to the person or persons within the next level down on the distribution chain. That level probably included Mr Kim Tran and/or those with whom he was associated. Mr Tran probably was in Adelaide also to ensure that payment was made for the heroin or to ensure that arrangements were in place for payment to be made. However, I am unable to find these last matters beyond reasonable doubt.
I am satisfied, beyond reasonable doubt, that Mr Nguyen was the courier of the four blocks of heroin for those who were at that high level of the distribution chain, and that he was knowingly so. Despite his evidence to the contrary I am satisfied, beyond reasonable doubt, that Mr Nguyen was a courier for his uncle, or for his uncle and his uncle’s associates. I do not believe Mr Nguyen’s evidence about him involving his uncle in this offending. I do not believe his evidence about the Bankstown restaurant. I reject that evidence.
Mr Tran and Mr Nguyen will be sentenced on the basis of these conclusions.

[2002] SADC 45

2 May 2002