R v Tran & Tran

Case [2009] SASC 327

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TRAN & TRAN

[2009] SASC 327

Judgment of The Court of Criminal Appeal

(The Honourable Justice Bleby, The Honourable Justice Anderson and The Honourable Justice White)

23 October 2009

CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - POTENTIALLY UNRELIABLE WITNESS OR EVIDENCE GENERALLY

Appellants convicted of taking part in the sale of heroin - X had been jointly charged with the appellants but had pleaded guilty and was sentenced - X sentenced on the basis that he would give evidence in the trial of the appellants - some aspects of the evidence given by X were untruthful as evidenced by a statement of agreed facts - X gave evidence which indicated that he had a mental illness - trial Judge gave accomplice warning to the jury, warning that it would be dangerous to convict on the uncorroborated evidence of X, and drawing the jury's attention to possible reasons why an accomplice's evidence may be unreliable - trial Judge drew instances of the appellant's untruthfulness to the attention of the jury, but did not give a warning that it would be dangerous to convict on the uncorroborated evidence of X on that basis, nor did the trial Judge give a warning that it would be dangerous to convict on the uncorroborated evidence of X on the basis that he suffered from a mental illness - whether failure of the Judge to give warnings constituted error.

Held (by majority Bleby and Anderson JJ, White J dissenting):  further warnings regarding the dangers on convicting on X's evidence due to the proved untruths in his evidence and his mental illness unnecessary in the circumstances of the case - the Judge gave sufficient direction as to how X's untruthfulness could properly affect the jury's assessment of his evidence - appeal dismissed.

Controlled Substances Act 1984 (SA) s 32(1)(d); Criminal Law Consolidation Act 1935 (SA) s 353(1), referred to.
R v Miletic [1997] 1 VR 593, applied.
R v Hunt [2002] SASC 195; Director of Public Prosecutions v Faure [1993] 2 VR 497; Hart v The Queen [2000] WASCA 103; R v Carabott [2002] SASC 283, distinguished.
Bromley v The Queen (1986) 161 CLR 315; Crampton v The Queen (2000) 206 CLR 161; Palmer v The Queen (1998) 193 CLR 1, discussed.
Piddlington v Bennett & Wood Pty Ltd (1940) 63 CLR 533; R v Connolly [1991] 2 Qd R 171; R v Stewart (2001) 52 NSWLR 301; R v Turner [1975] QB 834; Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213; R v Baker (2000) 78 SASR 103; R v Humble [2009] SASC 51; R v Booth [1982] 2 NSWLR 847; Carr v The Queen (1988) 165 CLR 314; Longman v The Queen (1989) 168 CLR 79; McKinney v The Queen (1991) 171 CLR 468; Domican v The Queen (1992)…

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AGLC
R v Tran & Tran [2009] SASC 327
Case
[2009] SASC 327
Decision Date

CaseChat Overview and Summary

The appellants, Tran and Tran, appeal against their convictions for drug trafficking, challenging the adequacy of the trial judge's directions to the jury regarding the evidence of a key witness, X. X, who was originally jointly charged with the appellants but pleaded guilty and was sentenced on the condition he would testify against them, provided evidence that was partly unreliable, as evidenced by a statement of agreed facts. Additionally, X had a history of mental illness. The appellants argued that the trial judge should have given additional warnings about the potential unreliability of X's evidence, beyond the standard accomplice warning, due to his untruthfulness and mental health issues. The appeal was heard and determined by the Supreme Court of South Australia.

The central legal issues in the appeal revolved around whether the trial judge's failure to provide additional warnings about X's untruthfulness and mental illness constituted an error that could lead to a miscarriage of justice. The court had to consider whether the judge's directions were sufficient to ensure the jury properly evaluated X's evidence, and whether additional warnings were necessary given the circumstances of the case. The appellants contended that the lack of such warnings made their convictions unsafe and unsatisfactory.

The majority of the court, comprising Bleby and Anderson JJ, found that additional warnings were not necessary in this case. They reasoned that the trial judge had provided sufficient direction to the jury regarding the evaluation of X's evidence, including highlighting his untruthfulness and mental health issues. The judge's warnings about the dangers of convicting on the uncorroborated evidence of an accomplice, coupled with the robust submissions made by the appellants' counsel, meant that the jury was well-informed about the need to scrutinize X's testimony carefully. The court concluded that the judge's directions, while perhaps not perfect, were sufficient to prevent a miscarriage of justice. White J dissented, believing that additional warnings were necessary.

The court dismissed the appeal, holding that the trial judge had given adequate directions to the jury regarding the assessment of X's evidence. The majority found that the judge's warnings, while not perfect, were sufficient to ensure the jury properly evaluated the evidence, and additional warnings were not essential to avoid a miscarriage of justice. The appellants' convictions were upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The appellants were convicted by a jury and now appeal, on identical grounds, against their convictions. They complain that the trial Judge failed to direct the jury appropriately as to the assessment of the evidence of X. Clear and strong warnings were required, it was said, not only because X was an accomplice, but also because X had been untruthful (as acknowledged by the prosecution at trial) in aspects of his evidence and because of his history of mental illness. In addition, the appellants contend that the jury verdict is unsafe and unsatisfactory.Background Circumstances The police attended at the Golding Street house at approximately 5.30 pm on 22 January 2005. They spoke to X in the front yard. He acknowledged that he was the occupant of the home and permitted the police to enter the house. They saw Mrs Tran sitting on a single seater in the lounge room, within reaching distance of the sofa in and under which the bag and balloon containing heroin were found. While the police were at the property, Mr Tran arrived in a BMW. The police conducted a search both of the house and of the BMW. In addition to the bag and balloon already mentioned, the police found in the kitchen three sets of scales (each with a residue of white powder which later analysis indicated was heroin), some plastic bags, a bag containing a kitchen blender, two bags of 30 party balloons, some latex gloves, two bags of glucose powder, a thin circular metal disc, and a small plastic sandwich bag which was also found to have traces of heroin in it. Elsewhere in the house, the police found a car jack, sometimes called a “bottle jack” (on which was located a fingerprint matching that of Mr Tran) and some componentry which, together with further componentry found in the BMW, could be made up into a heroin press. The police took scrapings from underneath the fingernails and swabs from both hands of Mrs Tran, Mr Tran and X. On later analysis, heroin was detected in both the swabs and fingernail scrapings from Mrs Tran’s right hand and in the swab taken from the left hand of X. Heroin was not detected on any of the swabs or fingernail scrapings taken from Mr Tran. The prosecution case was that the appellants and X were involved in a joint enterprise to prepare a parcel of heroin for sale by mixing the heroin with the glucose and then repackaging it. The press was to be used to compress the heroin into the shape of a puck or a cake. The prosecution case was that the appellants had commenced the process when they realised that some of the parts for the press were missing. Mrs Tran then directed Mr Tran to go and obtain the missing parts. He was doing this at the time the police arrived at the premises.The Evidence of X The evidence-in-chief of X was to the following effect. He was 40 years old and came to Australia from Vietnam in 1994. He had come to know Mrs Tran before arriving in Australia and regarded her as being like an older sister. In June 2005 he and his wife were renting a house in Golding Street, Beverley. He told Mrs Tran of a debt he owed and of his difficulty in paying it. About three or four weeks before 22 January 2005, Mrs Tran offered to pay him $500 in exchange for him allowing her the use of the Golding Street house for a period of about two hours. He agreed and absented himself on that occasion from the house for that period. On his return, he saw Mrs Tran and another person and some componentry being packaged up. The componentry was similar to that which the police found in the home on 22 January 2005.

Evidence

Evidence Before The Court

That was a case where the witness’s acknowledged lying went to the very issues in the case and assumed much greater influence on his reliability than the fact that he was also an accomplice. It was the nature of the lies and the circumstances of their telling that required the warning. The warning given was inadequate because:[17]It did not focus upon the fact that [P] was a confessed liar, even upon his oath, and for the purpose of manipulating the evidence so as to inculpate a person against whom he had a grievance and exculpate others when he was of a contrary mind.[Emphasis added].[17] Ibid [23]. In R v Carabott[18] the accused was charged with two counts of possession of a drug for sale. The drugs were found in a car that he was driving, along with equipment associated with drug use and the drug trade, a bayonet, a replica pistol, a knife and two mobile telephones. The accused told the police that the car was owned by K. One of the mobile telephones was leased by K’s wife. K was a vital witness for the prosecution. His evidence was that he did not own the vehicle but that the appellant did. The car was registered in his name at the appellant’s request, and he had never driven the vehicle and knew nothing about the drugs. He had previously told a police officer that he was in the process of selling the vehicle to the appellant – a statement which, in evidence, he denied having made. He admitted that the bayonet was his but claimed that it had been removed from his house unlawfully. He was unable to explain the presence in the car of the mobile telephone in his wife’s name. He admitted that he was addicted to morphine.[18] [2002] SASC 283 (2002) 83 SASR 293. In that case the warning was necessary because of “the significance of [K] having his own interest to serve”.[19] It was held that an appropriate warning should have been given that his evidence required careful scrutiny and warning of the dangers of acting on his evidence in the absence of independent support.[19] Ibid [18], 298. Finally, in this review of the cases, R v Hunt[20] is a case of some significance. It was a case of murder by joint enterprise to which the witness W was a party, and indeed fired the rifle which killed the victim. W had pleaded guilty to murder and was the principal prosecution witness against the accused. The weapon was provided by the accused, and the common purpose or joint enterprise was that the rifle would be used to intimidate people in a house, the allegation being that the accused contemplated that if the occasion arose the rifle would be fired at someone. The accused also gave evidence. W was obviously his accomplice if he was found guilty. He had good reason to play-down his own involvement and to play up that of others.[20] [2002] SASC 195. W’s evidence at the trial maintained what was described as a “consistent core”. He admitted the consumption of cocaine, marijuana and alcohol on the day in question. He admitted fairly long-term drug abuse. He agreed that he had experienced hearing voices when he was affected by drugs. He agreed that cocaine and marijuana had an adverse effect on his memory. There were inconsistencies and a change of story between what he told the police and what he said in evidence as to the material events surrounding the murder. There were other discrepancies in his evidence.

Decision

Reasons for decision

ANDERSON J
In the present case, the evidence of the mental illness of X was potentially relevant to his capacity to observe, and his perception of, the events occurring on 22 January 2005. This suggests that it was an appropriate matter to be led by the prosecution. If the submission of the appellants to the effect that the mental illness of X by itself required a special direction was accepted, this too would provide an additional rationale for the prosecution having properly led evidence of the mental illness in chief. However, my rejection of that submission makes it unnecessary to consider that basis for the admission of the evidence further.Conclusion This is not a case for the application of the proviso in s 353(1) of the Criminal Law Consolidation Act 1935 (SA). It is not possible for this Court to be satisfied that no substantial miscarriage of justice has occurred. Although the prosecution relied upon a number of items of circumstantial evidence in addition to the evidence of X, it cannot be said that that evidence was so strong that, even without the evidence of X, the jury must have convicted the appellants. In my opinion, permission should be granted to each of the appellants to amend the notices of appeal to add a ground relating to the absence of a direction concerning the mental illness of X. Permission to appeal on that additional ground should be granted. I would then allow both the appeals and set aside the conviction of each appellant. I would order a retrial of the Information.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

These authorities indicate that generally a warning additional to a conventional accomplice warning will be required when there are other significant features in the evidence indicating the potential unreliability of a key prosecution witness. Consideration In the present case, the jury could hardly have been in any doubt that the credibility of X was a major issue in the trial. It had been highlighted by the prosecutor in the course of her opening. The very nature of the cross-examination of X must have made it very apparent to the jury that the appellants impugned his honesty and reliability. The prosecutor reminded the jury of the issue in her summing-up and made some remarks to the jury about their assessment of the credibility of X. Counsel for each of the appellants made trenchant submissions to the jury about the credibility of X. Counsel for Mrs Tran described him as “unequivocally a proven liar and perjurer”. Counsel for Mr Tran said that it was “gob-smacking” that the jury was being asked to rely upon X as a witness of truth and described him as a person who “couldn’t lie straight in bed”. In short, it could be said that the manner in which the trial was conducted and the submissions of all counsel could have left the jury in no doubt about the importance of their assessment of the reliability of his evidence about the events occurring on 22 January 2005. It could also be said that the significance of the untruths told by X was a matter which was “within the capacity of a jury to evaluate, in the light of their own experience and with the benefit of counsels’ addresses”. The drawing of a conclusion to that effect would be reinforced by the statement made at the hearing of the appeal by senior counsel for Mrs Tran that, at the trial, “I didn’t think anyone would believe a word [X] had to say”. Taken together these matters suggest that while a “second warning” may have been desirable, it was not essential in order to avoid a possible miscarriage of justice. However, in my opinion, appropriate directions in this case did require the Judge to do more than to remind the jury of the submissions of counsel concerning the credibility of X and of the fact that they would need to take into account the admitted untruths by X when they assessed his evidence on contentious topics. That is because the jury may not have realised how unusual it was for the prosecution to agree facts demonstrating the untruthfulness of several aspects of the evidence of a key prosecution witness. Secondly, as in Hart, the specific warning relating to the status of X as an accomplice may have caused the jury to focus upon the dangers involved in accepting his evidence derived from that circumstance and diverted their attention from the dangers arising from his accepted untruthfulness. The Judge’s statement that his remarks about evaluating the evidence of X were “little more than an extension of what you would understand from your everyday lives” may have contributed to this effect.