R v Tran - [2017] SASCFC 168

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TRAN
[2017] SASCFC 168
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Parker)
19 December 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction.
The appellant was convicted of two counts of trafficking in heroin contrary to s 32(3) of the Controlled Substances Act 1984 (SA). The heroin was found by police in the appellant’s bedroom, namely hidden inside a printer and a hollowed out candle. The appellant and her former partner, Mr Nguyen, were in the house at the time of the police raid. The appellant had spent the previous night at her sister’s house to allow Mr Nguyen access to their child. The prosecution case was that the appellant hid the heroin in her bedroom acting alone. The prosecution did not rely on the appellant exercising possession jointly with Mr Nguyen.
The appellant appeals on the grounds that the trial Judge failed to adequately direct the jury on the elements of possession and that the verdicts are unreasonable or cannot be supported having regard to the evidence.
Held, by Kourakis CJ (Stanley and Parker JJ agreeing), dismissing the appeal:
1. Although the trial Judge’s directions were brief and lacked any elaboration, they were sufficient to properly direct the jury on the forensic issues in this case.
2. The way in which the prosecution ran its case rendered it unnecessary for the trial Judge to give a direction that mere acquiescence in the hiding of the heroin in the appellant’s bedroom did not itself constitute possession.
3. The verdict was not unreasonable. The places in which the heroin was hidden in the appellant’s bedroom supported an inference that it was hidden by the person who permanently resided in it and not by an overnight visitor.
Controlled Substances Act 1984 (SA) s 32, referred to.
R v GNN (2000) 78 SASR 293; R v Neal (2017) 128 SASR 20; R v Saleh [2017] SASCFC 75; R v Wood [2017] SASCFC 100, considered.

R v TRAN
[2017] SASCFC 168
Court of Criminal Appeal: Kourakis CJ, Stanley and Parker JJ

KOURAKIS CJ: The appellant, Thi My Dieu Tran, appeals against her conviction on two counts of trafficking in heroin contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (the CSA). Ms Tran appeals on the ground that the trial Judge failed to adequately direct the jury on the elements of possession, and on the ground that the verdicts are unreasonable. Ms Tran was given permission to appeal on the first ground and the second ground was referred to this Court for its consideration.
The heroin was found by police hidden in two locations in Ms Tran’s bedroom. Among others, Ms Tran and her…

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 Tran

Details

AGLC: R v Tran [2017] SASCFC 168
Case: [2017] SASCFC 168
Decision Date: 19 December 2017

CaseChat Overview and Summary

The appeal before the Full Court of the Supreme Court of South Australia concerned a conviction for trafficking a controlled drug. The prosecution's case was that the appellant, Ms Tran, was in sole possession of heroin found concealed in her bedroom. Police discovered approximately an ounce of heroin in two locations within the bedroom: one bundle inside a printer, alongside electronic scales, and another bundle within a hollowed-out candle with a false bottom, which also contained USB devices. At the time of the police search, the appellant was in the kitchen, while her former partner, Mr Nguyen, who was wheelchair-bound, was seen emerging from the appellant's bedroom. There was no forensic evidence directly linking the appellant to the drugs, and it was not disputed that the appellant had stayed at her sister's house the night before the raid due to Mr Nguyen's presence.

The legal issues before the court were whether the trial judge had misdirected the jury regarding the elements of possession, and whether the verdict was unreasonable or insupportable having regard to the evidence. Specifically, the appellant argued that the jury should have been directed on the distinction between mere acquiescence and actual possession, particularly in circumstances where another person was present and had access to the bedroom. The court was also asked to consider if the evidence was sufficient to establish the appellant's exclusive possession of the heroin, or if a reasonable doubt existed.

The Full Court dismissed the appeal on the first ground, finding that the trial judge's directions, while brief, were sufficient for the forensic issues in the case. The court reasoned that the prosecution's case was based on the appellant having personally placed and concealed the heroin for her exclusive use, rather than on a scenario of joint possession or acquiescence. Therefore, a direction on mere acquiescence was deemed unnecessary. Regarding the second ground, the court refused permission to appeal, concluding that the concealment of the heroin in the printer and candle, coupled with personal items belonging to the appellant found in the bedroom, constituted strong circumstantial evidence of her possession. The court found it improbable that Mr Nguyen, given his temporary and disabled status, would have used such elaborate hiding places, and therefore the jury's inference of the appellant's exclusive control was properly drawn.

Consequently, the appeal on the first ground was dismissed, and permission to appeal on the second ground was refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I would dismiss the appeal on the first ground and refuse permission to appeal on the second. I elaborate on my reasons below.The evidence The following factual summary of the prosecution case is taken from the appellant’s outline of submissions:On 14 September 2015, police attended upon a house leased by the appellant for the purpose of conducting a search. In the process of searching the house, the police discovered in the order of an ounce of heroin in two locations in a bedroom normally occupied by the appellant. It was the prosecution case that the appellant was in sole possession of the heroin.At the time of the police attendance, there were four people in the house. The appellant was in the kitchen and a man by the name of Mr Nguyen - the former partner of the appellant - was seen emerging from the appellant’s bedroom.In the subsequent search of the property, the police located two bundles of heroin in the main bedroom. One bundle was inside a printer, although not carefully concealed. The police also found a set of electronic scales within the printer. The second bundle was found in the base of a candle. Inside the candle were a number of USB devices and sitting in front of or on top of those devices was a Probiotic bottle which contained 8 small press sealed bags of heroin.There was no forensic evidence linking the appellant to the drugs.The heroin in the printer was found on subsequent examination to weigh 27.4g and consist of 17.6g pure heroin. The heroin in the Probiotics bottle was found to weigh 2.67g, comprised of small amounts ranging from 0.16g to -0.47g. All up, the heroin was worth in the order of $6,000 - $12,000.There was no dispute at trial that the main bedroom was generally used by the appellant. Various personal items - such as cards in a purse bearing the appellant’s name - were found in the main bedroom. Similarly, on the USB devices found by police were documents and photographs relating to the appellant, as well as other people. Equally, however, there was no dispute at trial that the appellant had not spent the night before the raid at home but, rather, had stayed at her sister’s house because Mr Nguyen, her former partner, was staying at the appellant’s house, having travelled from Aldinga. The Director of Public Prosecutions (the Director) agreed with the factual summary with the following supplementation:· the heroin inside the printer was wholly concealed within it behind a flap that is used to access the ink cartridges; it was out of sight until the flap was opened; · the candle had been hollowed out and had a false bottom to create a secret compartment, and was placed on a shelf approximately 1.5 metres high;· Mr Nguyen was described by one of the police officers as wheelchair bound;· Mr Nguyen was seen emerging from the appellant’s bedroom as police entered it; between knocking on the door and opening the door, five to six seconds had elapsed. Ms Tran’s sister, Rosy, gave evidence that Ms Tran had slept overnight at her home on 13 September 2015 and was there early in the morning when she left to go to work. Rosy did not give any evidence about the nature of Mr Nguyen’s medical condition which had left him wheelchair bound.

Decision

Reasons for decision

In R v Wood[9] the directions, given by the trial judge were extensive and also expressly excluded mere acquiescence in the presence of the illicit drugs. Vanstone J correctly described the directions as ‘clear and comprehensive’. Vanstone J then continued:[10][18]The passage in GNN relied on does not prescribe a particular approach to directing juries on possession. Certainly there is material there which Judges may well find helpful in drafting directions suitable for the particular case before them. But each case turns up different facts and different issues. Generally speaking, the main requirement in terms of the elements of an offence is to clearly explain what is required in terms of proof. If that is done then it will not usually be necessary to provide a catalogue of what is not sufficient. Of course, if issues are muddied by counsel, or if the issue for determination can be honed by sweeping away some red herrings or straw men, then it may be helpful to dispose of those issues by directing that certain matters cannot prove the charge. It is true that the concept of possession, and particularly joint possession, can be a difficult one for jurors, who do not customarily think in such terms. For this reason examples are helpful. However, in the circumstances of this case, having considered the evidence and the directions, I am of the view that the legal issues were clearly laid out.(emphasis in original)[9] [2017] SASCFC 100 at [11]-[12].[10] R v Wood [2017] SASCFC 100 at [18] (Kourakis CJ and Nicholson J agreeing).Conclusion The Judge’s directions in this case were brief and lacked any elaboration. However, they were sufficient to properly direct the jury on the forensic issues in this case. The prosecution case was that Ms Tran, herself, placed and concealed the heroin in her bedroom for her exclusive use. The prosecution did not rely on a finding that Ms Tran, having discovered that Mr Nguyen had hidden the heroin in her bedroom, thereafter intended to possess it with him to the exclusion of all others. A direction that mere acquiescence in the hiding of the heroin in her bedroom did not in itself constitute possession was therefore unnecessary. There has been no miscarriage of justice.Unreasonable verdict The fact of the presence of the heroin concealed in the printer and the specially fashioned candle in Ms Tran’s bedroom was strong evidence of her possession of it. Mr Nguyen’s presence at the house was temporary and for the purpose of taking access to his child. It was improbable that he would conceal the heroin in the candle and printer if it were his. Given the temporary nature of his stay, and his disability, he is more likely to have kept the heroin in a single and more readily accessible location. It is not arguable that the jury must have entertained a reasonable doubt. On the circumstantial case against the appellant the inference that she had secreted the heroin in the particular hiding spots in which it was found, and that she intentionally exercised exclusive control over it, was properly drawn by the jury.Orders·Appeal on ground 1 dismissed.·Permission to appeal on ground 2 refused.

Ratio Decidendi

Legal Principle Established

It will be observed that the reference to intending to ‘exclude anyone else’ in that direction goes a little further than the address of defence counsel in the passage reproduced above. I accept that the Judge’s elaboration on the defence submission is more apt to a case in which there is an issue as to mere acquiescence in, or joint possession with another. However, that was not the forensic issue in this case. I accept that if it were, the collateral reference to the concept by reminding the jury of defence counsel’s submission would not have been an adequate direction. Moreover, as will be seen, in a case where mere acquiescence or joint possession is a forensic issue, greater elaboration is generally necessary to guard against a miscarriage.Consideration I observe at the outset that possession is a sufficient but not a necessary element of trafficking in a controlled drug. The definition of trafficking in s 4 of the CSA includes ‘take part in the process of sale of the drug’. The forensic purpose of the prosecution, in relying on possession as the relevant form of participation in trafficking, is to engage the presumption of commerciality in s 32(5) of the CSA which applies when possession of the prescribed quantity is proved. It is of course possible for a prosecution case to rely on other evidence of a commercial purpose, and on a form of participation other than possession to constitute the objective element of the offence of trafficking. It is also possible for the prosecution to, in such a case, rely on the possession and the presumption as an alternative basis on which to prove the commercial purpose. However, in most cases at least, to do so would unnecessarily complicate the case and the directions which would have to be given. In R v GNN[1] (GNN) this Court considered the elements of possession in the context of charges of trafficking contrary to s 32 of the CSA. In GNN a police search discovered heroin in a house when there were a number of persons present, including some visitors who had just arrived from interstate. Ms GNN was convicted of trafficking in heroin found concealed in two different locations in the kitchen but not guilty of heroin found in a bedroom which she was temporarily sharing with Mr THN, a man with whom she was in a relationship. Mr THN had arrived from Sydney on the day before the police search. The heroin in the bedroom was hidden between the mattress and the base of the bed. That heroin was not related chemically to any other heroin found in the house. Heroin was also found in the car in which the visitors from Sydney had arrived. Ms GNN denied any knowledge of the heroin. Chief Justice Doyle commenced his consideration of the adequacy of the directions on possession as follows:[2][20]First, it was important to explain to the jury that, in the circumstances, knowledge of the presence of the heroin was not enough. For example, satisfaction on the jury's part that Ms GNN knew that one of the men had concealed the heroin in the house was not sufficient to establish that she was in possession of the heroin. Another matter which called for particular attention was to explain to the jury that before finding Ms GNN guilty they had to be satisfied that the heroin was not in the exclusive possession of one of the men who were at the house that night. Thirdly, it was necessary to emphasise the requirement to prove physical control over the heroin and an intention to exercise control over it. It was necessary to relate these matters to the facts, in a practical way, to avoid the risk of the jury convicting on an unreliable basis. It was necessary to give directions that dealt adequately with the possibility that the heroin was in the possession of one of the men found in the house.[1] (2000) 78 SASR 293.[2] R v GNN (2000) 78 SASR 293 at 296, [20].