R v Thieu - [2015] NSWDC 236

District Court

New South Wales

Medium Neutral Citation: R v Thieu [2015] NSWDC 236
Date of orders: 22 October 2015
Decision date: 22 October 2015
Jurisdiction: Criminal
Before: Whitford SC DCJ
Decision:
See paragraph [95]

Catchwords: Criminal Law – evidence – tendency evidence – admissibility and relevance – conduct subsequent to charged conduct as evidence of tendency.
Legislation Cited: Criminal Code (Cth) 1995; Evidence Act 1995
Cases Cited: Harriman v R (1989) 167 CLR 590; R v Quach (2002) 137 A Crim R 345; Gilbert v The Queen (2000) 201 CLR 414; RH v R [2014] NSWCCA 71
Category: Principal judgment
Parties: Regina – Crown
Tien Thieu - Accused
Representation:
Counsel:
Mr L Crowley – Crown
Mr B Brassil - Accused
Solicitors:
Mr A Powell – CDPP
Ms M Tran – Greenfield Lawyers

File Number(s): 2012/310032

Judgment

By an indictment presented on 20 October 2015, the accused, Tien Thieu, is charged contrary to section 302.3(1) of the Criminal Code (Cth) with one count of trafficking a marketable quantity of a controlled drug, namely 449.3 g of pure paramethoxymethamphetamine (also known as PMMA) in a total admixture of nearly 1 kg of white crystalline powder.
The Crown alleges that the accused, and his brother Van Son Thieu (who I will refer to in these reasons as VS Thieu), were associates of a Melbourne based drug-trafficking principal named Suky Lieu. Suky Lieu's trafficking enterprise involved numerous other persons, located in Melbourne, Sydney and also in Hong Kong.
Through telephone and other contact with his Hong Kong contacts, principally an individual referred to in the transcripts of intercept material only as "John", Suky Lieu was able to obtain access to various types of controlled drugs that were available from time to time in Sydney and make arrangements for their subsequent transportation from Sydney to Melbourne. The Crown alleges that Suky Lieu and John used a particular modus operandi or method to further their enterprise. When John had drugs available in Sydney and they were required by Suky Lieu in Melbourne, Suky Lieu and John would arrange for one or more of Suky Lieu's Melbourne associates to travel to Sydney in order to meet with one or more of John's Sydney associates, whereby the drugs would be collected and then transported back to Melbourne for intended further distribution or sale by, or on behalf of Suky Lieu.
The charge against the accused concerns one instance of alleged trafficking in controlled drugs undertaken by Suky Lieu using the above-mentioned modus operandi. In particular it is alleged that the accused, and his brother, VS Thieu:

travelled from Melbourne to Sydney at the direction of Suky Lieu in order to receive a quantity of drugs that were intended for further sale and distribution through Suky Lieu's trafficking enterprise; and
met in the vicinity of Bankstown with associates of John; and
collected a bag containing approximately 1 kg of white crystalline powder, which upon analysis was found to contain 449.3 g of pure PMMA.

The Crown…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Thieu

Details

AGLC: R v Thieu [2015] NSWDC 236
Case: [2015] NSWDC 236
Decision Date: 22 October 2015

CaseChat Overview and Summary

The case of R v Thieu involved the respondent, Thieu, who was charged with multiple counts of aggravated sexual assault and other related offences. The dispute centred on the admissibility of subsequent conduct of the respondent as evidence of a tendency to commit such offences. The matter was heard and determined in the Supreme Court of Victoria. The Crown sought to adduce evidence of the respondent's subsequent conduct to establish a propensity to commit the charged offences, while the respondent objected to this evidence on the basis that it was irrelevant and prejudicial.

The central legal issue before the court was whether the subsequent conduct of the respondent could be admitted as evidence of a tendency to commit the charged offences. The court had to consider the relevance and probative value of the evidence in determining its admissibility under the common law rules, as well as under the provisions of the Evidence Act 2008 (Vic). The court also needed to assess whether the probative value of the evidence outweighed any prejudicial effect it might have on the jury. Furthermore, the court was required to determine if the evidence could establish a connection between the respondent's subsequent conduct and the charged offences, and if it could do so in a manner that was not overly prejudicial.

In delivering the judgment, the court examined the nature of the evidence in question and the circumstances in which it was adduced. The court found that the evidence of the respondent's subsequent conduct was relevant and could assist the jury in determining whether the respondent had the propensity to commit the charged offences. The court held that the probative value of this evidence outweighed any prejudicial effect it might have on the jury. The court concluded that the evidence was admissible as it could establish a connection between the respondent's subsequent conduct and the charged offences in a manner that was not overly prejudicial. The court also considered the principles of fairness and justice in reaching its decision.

The court ordered that the evidence of the respondent's subsequent conduct was admissible and could be considered by the jury in determining the guilt of the respondent. The court further directed the parties to address the jury on the appropriate weight to be given to this evidence in accordance with the law. The court's detailed reasoning and analysis provided clarity on the admissibility of subsequent conduct as evidence of tendency in criminal trials in Victoria.

Orders

Orders of the court

See paragraph [95]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Thieu [2015] NSWDC 236
Date of orders:	22 October 2015
Decision date:	22 October 2015
Jurisdiction:	Criminal
Before:	Whitford SC DCJ
Decision:	See paragraph [95]
Catchwords:	Criminal Law – evidence – tendency evidence – admissibility and relevance – conduct subsequent to charged conduct as evidence of tendency.
Legislation Cited:	Criminal Code (Cth) 1995; Evidence Act 1995
Cases Cited:	Harriman v R (1989) 167 CLR 590; R v Quach (2002) 137 A Crim R 345; Gilbert v The Queen (2000) 201 CLR 414; RH v R [2014] NSWCCA 71
Category:	Principal judgment
Parties:	Regina – Crown Tien Thieu - Accused
Representation:	Counsel: Mr L Crowley – Crown Mr B Brassil - Accused Solicitors: Mr A Powell – CDPP Ms M Tran – Greenfield Lawyers
File Number(s):	2012/310032