R v Tran - [2017] QCA 31

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tran [2017] QCA 31

PARTIES:

R
v
TRAN, Lam Hoang
(appellant)

FILE NO/S:

CA No 310 of 2015
SC No 864 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 2 December 2015

DELIVERED ON:

14 March 2017

DELIVERED AT:

Brisbane

HEARING DATES:

24 August 2016; 3 November 2016

JUDGES:

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

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPPEAL DISMISSED – where the appellant was convicted of attempting to possess a commercial quantity of an unlawfully imported border controlled drug – where commercial quantities of heroin were concealed and imported in altars – where the appellant assisted with dismantling the altars in a locked shed – where a small group of people had access to the locked shed – where the police searched the shed during the dismantling process and the appellant’s appearance and behaviour suggested he was involved in the dismantling process – where the appellant denied knowledge of heroin but admitted he thought something illegal might have been concealed in the altars – where the respondent submitted that the appellant’s intention to possess the heroin was indicated by his participation – where the jury had the benefit of seeing and hearing the appellant’s evidence – whether on the whole of the evidence it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt

Criminal Code 1995 (Cth), s 307.5

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed
R v Baden‑Clay (2016) 90 ALJR 1013; [2016] HCA 35, followed
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

P J Callaghan SC, and B Dighton, for the appellant
G R Rice QC, and T Ryan, for the respondent

SOLICITORS:

Bosscher Lawyers for the appellant
Director of Public Prosecutions (Commonwealth) for the respondent

MARGARET McMURDO P: After reviewing the evidence in the appellant’s trial, I am satisfied, for the reasons given by Morrison JA, that the guilty verdict is not unreasonable or unsupported by that evidence. I agree with Morrison JA that the appeal against conviction should be dismissed.
MORRISON JA: On 28 October 2012, a container load of freight from Vietnam arrived at the Port of Brisbane. On 6 November, Customs officers examined three wooden crates in the container. The crates contained two wooden altars as well as some other items of furniture.
Each of the altars was found to contain just over 27 kilograms of heroin, of varying purity. The total weight of pure heroin in the first altar was just over 17 kilograms, and just over 16.6 kilograms in the second altar. In total, there were 78 rectangular packages…

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] QCA 31
Case: [2017] QCA 31
Decision Date: 14 March 2017

CaseChat Overview and Summary

The case of R v Tran concerns an appeal against conviction for attempting to possess a commercial quantity of an unlawfully imported border controlled drug. The appellant, Tran, was convicted following his involvement in the dismantling of wooden altars in a locked shed, which were found to contain concealed heroin. The court had to decide whether the jury's verdict was unreasonable or insupportable given the evidence presented.

The legal issues at hand revolved around the interpretation of the evidence and whether it was open to the jury to be satisfied of Tran's guilt beyond reasonable doubt. Key considerations included Tran's participation in the dismantling process, his denial of knowledge of the heroin, and his admission that he thought something illegal might have been concealed in the altars. The respondent argued that Tran's intention to possess the heroin was indicated by his participation.

The court meticulously reviewed the evidence, including the agreed facts, the police investigation, and the behaviour of Tran during the dismantling process. The court found that the jury had the benefit of seeing and hearing Tran's evidence and was entitled to draw inferences from his appearance and behaviour, which suggested his involvement in the illicit activity. The court concluded that the evidence was sufficient to support the jury's verdict that Tran was guilty beyond reasonable doubt.

The appeal against the conviction was dismissed. The court upheld the jury's decision, finding that it was open to them to be satisfied of Tran's guilt based on the totality of the evidence.

Orders

Orders of the court

The appeal against conviction is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

A Schedule of Agreed Facts was tendered at the trial. I do not intend to set them out in full, but rather record the following synopsis:two altars, contained within wooden crates, were imported in a container load of goods from Vietnam; it arrived in the Port of Brisbane on 28 October 2012, and was examined by Customs officers on 6 November 2012;in the case of the wooden altars, Customs officers detected white powder and when the bases were removed, each was found to contain 39 rectangular tape wrapped packages, containing a total of over 54 kilograms of powder;in the first altar, the total weight of white powder was 27.1226 kilograms; the average purity of the powder for heroin in that altar was 62.7 per cent; the total weight of pure heroin in that altar was 17.0167 kilograms;in the second altar there was 27.2421 kilograms of powder, at an average purity of 61.1 per cent, and therefore a total weight of pure heroin of 16.6503 kilograms;inert powder was substituted for the heroin, packaged in a way that was similar to the original 78 packages; 78 packages were reinstalled and the base of each altar was reconstructed; listening devices and tracking devices were then inserted;on 9 November 2012, the wooden altars (and some other items) were delivered to 40 Chauvin Street, Robertson; there they remained unopened and under surveillance, until the following day;the shipping and freight records relating to the assignment referred to one Le Trinh Tran (LTT)[6] as the consignee, but did not identify the person who had consigned the contents to Australia from Vietnam;the charges for the consignment from Vietnam to Brisbane were paid in Vietnam by an unknown person;a fingerprint of the defendant, Mr Pham, was located on a FoodSaver vacuum sealer machine, which was located inside a shed at 36 Greenhill Road, Munruben; in addition, a number of Mr Pham’s fingerprints were located on FoodSaver plastic bags inside the same shed;no prohibited substances were found on the FoodSaver vacuum sealer machine or the plastic bags;Mr Dang’s fingerprints were found inside a Nissan X Trail vehicle, located inside the same shed;Mr Dang hired the Nissan X Trail some five days previously, on 25 October 2012, in Footscray in Victoria;the value of the heroin was estimated to be between AUD$10 million and AUD$20 million, depending on the size of the quantities into which the powder might be broken down and sold.[7][6]She was not related to or connected with Mr Tran.[7]Agreed Facts, AB 477.Police and investigation evidence A number of police and other witnesses were called to establish the investigative train of events concerning the concealed heroin, events during the raid, and items found in the shed. For example one officer was called to establish that Mr Tran’s vehicle was parked near the front of the property at the time of the raid. Their evidence need not be referred to in full, but I will endeavour to set out the pertinent details below.Evidence of Officer McIlwham

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Tran [2017] QCA 31
PARTIES:	R v TRAN, Lam Hoang (appellant)
FILE NO/S:	CA No 310 of 2015 SC No 864 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 2 December 2015
DELIVERED ON:	14 March 2017
DELIVERED AT:	Brisbane
HEARING DATES:	24 August 2016; 3 November 2016
JUDGES:	Margaret McMurdo P and Morrison and Philippides JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal against conviction is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL –VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPPEAL DISMISSED – where the appellant was convicted of attempting to possess a commercial quantity of an unlawfully imported border controlled drug – where commercial quantities of heroin were concealed and imported in altars – where the appellant assisted with dismantling the altars in a locked shed – where a small group of people had access to the locked shed – where the police searched the shed during the dismantling process and the appellant’s appearance and behaviour suggested he was involved in the dismantling process – where the appellant denied knowledge of heroin but admitted he thought something illegal might have been concealed in the altars – where the respondent submitted that the appellant’s intention to possess the heroin was indicated by his participation – where the jury had the benefit of seeing and hearing the appellant’s evidence – whether on the whole of the evidence it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt Criminal Code 1995 (Cth), s 307.5 M v The Queen (1994) 181 CLR 487; [1994] HCA 63, followed R v Baden‑Clay (2016) 90 ALJR 1013; [2016] HCA 35, followed SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited
COUNSEL:	P J Callaghan SC, and B Dighton, for the appellant G R Rice QC, and T Ryan, for the respondent
SOLICITORS:	Bosscher Lawyers for the appellant Director of Public Prosecutions (Commonwealth) for the respondent