R v Tan Phuong Le (No 2)

[2010] NSWDC 21

CITATION:	R v Tan Phuong LE (No 2) [2010] NSWDC 21
HEARING DATE(S):	25 February 2010
JUDGMENT DATE:	25 February 2010
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Evidence to be admitted
CATCHWORDS:	CRIMINAL LAW - Judgment - Admissibility of document - Common purpose
LEGISLATION CITED:	Evidence Act 1995
PARTIES:	The Crown Tan Phuong Le
FILE NUMBER(S):	DC 2008/00018555001
COUNSEL:	Mr M Johnston - Crown Mr F Santisi - Defendant
SOLICITORS:	Director of Public Prosecutions Tsambas & Co Solicitors

JUDGMENT

1 HIS HONOUR: Objection has been taken to the tender of a translation of some words in Vietnamese. The factual circumstances in which the document is proposed to be tendered by the Crown are apparent from the transcript and I will not take time by going over the relevance of the document.

2 The Crown says that the statement made by Mr Loc Phuoc Trieu was a representation made as part of a common purpose he had with the accused to import methylamphetamine; thus, says the Crown, is admissible under s 87(1) (c) of the Evidence Act.

3 It is clear that someone was proposing or attempting to import methylamphetamine. I have heard evidence of the finding by customs officers and, more importantly, police officers, of a substantial quantity of methylamphetamine inside three suitcases. There is substantial evidence to suggest even at this early stage that the accused was involved in that common purpose. I refer in particular to the telephone intercepts, translations of which were tendered and appear as Exhibit 5 in the trial. There is evidence that the person who has been called Phuong in those transcripts is in fact the accused. Not only does the person identified as Phuong identify himself as Phuong in the calls, but there was evidence called yesterday, I think, from a person who compared the voice on the intercepts with the voice of the accused in an interview, and that evidence was that it was the same person. So it is clearly open to me find – (in fact, if necessary, I would be able to make a finding to a higher standard) - that the accused was part of the common purpose to import the methylamphetamine.

4 So too, I am able to find, was the person who wrote the representation, Loc Phuoc Trieu. He is mentioned in at least one of the calls, and the address he wrote on the document is also mentioned in at least one other of those telephone intercepts to which I referred.

5 Clearly, the representation was made as part of the common purpose to have the drugs made available in Australia. They were physically in Australia at the time the representation was made, but it was, of course, necessary for those involved in the common purpose to have the drugs delivered to someone for their ultimate on-sale or distribution. The representation to which objection has been taken was thus made in furtherance of that common purpose. It was necessary that the drugs clear customs and that they were delivered to someone for the purposes of distribution or on-supply, and the representation was a part of that process.

6 Mr Santisi, as a fall-back position, relies on s 135 and s137 of the Evidence Act. I can see no risk of unfair prejudice at all. All that I can see is that the Crown case is made stronger.

7 There is one qualification though, and that concerns the suggestion in the representation that the accused was the “owner” of the goods.

8 I am satisfied that it would be appropriate - and the Crown concedes it - to limit the use of this evidence so that I direct the jury that they cannot use the representation that Mr Le Tan Phuong was the “owner” of the goods as proving the truth of that statement. So the evidence will be admitted, and I will limit it in the way I have just described.

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