Regina v Kim Loan Nguyen - [2006] NSWDC 25

CITATION: Regina v Kim Loan Nguyen [2006] NSWDC 25

JUDGMENT DATE:
23 May 2006

JUDGMENT OF: Finnane QC DCJ

CATCHWORDS: Evidence - Admissibility - Expert Evidence - Opinion of experienced Police Operative - Meaning of codewords in telephone intercepts - Drugs

LEGISLATION CITED: Evidence Act 1995 s.79

CASES CITED: Regina v Lam [2002] NSWCCA 377
Makita (Australia) P/L v Sprowles 52 NSWLR 705
Regina v Howard [2005] NSWCCA 25
Regina v Anderson [2000] VSCA 16
Paric v John Holland Constructions P/L 1984 2 NSWLR 505
R v Folwer (1985 ) 39 SASR 440
Holtman v Sampson [1985] 2 Qd R 472
Bell v FS & U Industrial Benefit Society Ltd (9 September 1987 unreported judgment)
Lewis v The Queen (1987) 88 FLR 104
R v Lucas [1992] 2 VR 109
Sydneywide Distributors Proprietary Limited v Red Bull Australia Pty Ltd (2002) IPR 354
Cadbury Schweppes, v Darrell Lea Chocolate Shops Proprietary Limited [2006] FCA 363
Bugg v. Day (1949) 79 C.L.R. 442
R. v. Inch (1990) 91 Cr.App.R. 51
R. v. Marquard (1993) 85 C.C.C. 193
R. v. Turner [1975] 1 Q.B. 834
R. v. J. (No.1) (1994) A.Crim.R. 522
Regina versus Van Tan Huynh (Court of Criminal Appeal New South Wales unreported 13th of May 1996)

PARTIES: Regina
Kim Loan Nguyen

FILE NUMBER(S): 05/11/0806

COUNSEL: Mr V Hrouda- Crown
Mr P Faris Q.C. with Mr J Korn for the Accused

SOLICITORS: Mr Prince for NSW DPP
Mr Ellinghaus for the Accused

- 1 -

JUDGMENT
Facts.

1 The Crown is proceeding against the accused on an indictment that alleges that on the 8th February 1999 she supplied heroin in Sydney in an amount that was not less than a large commercial quantity. The Crown case against her is set out conveniently in two paragraphs, with editing in the decision Regina v Lam [2002] NSWCCA 377.

2 The case is as follows.

"Between 26-29 January, the appellant, in Sydney, had a number of conversations with Kim, in Melbourne. They entered into an agreement to supply an associate of Kim, known as “Fatty Bobby”, with a piece of something (heroin), at 11am on Friday 29 January 1999. In a phone call on 27 January at 12.46pm, the appellant and Kim discussed supplying “Fatty” with heroin for a cheaper price (in coded terms) to which the appellant finally agreed. In a phone call with Kim later that day at 9.42pm, she said, “When you bring Fatty dinner…give him [Fatty] good one”. On 28 January in a phone call at 12.17pm there is reference to an arrangement the following day at 11am. On the 28th, in a phone conversation between Kim and “Fatty Bobby” at about 4.04pm, “Fatty Bobby” told Kim the car to be used would be a White Holden Barina SYX-642, at the time of 11am. About two minutes later, Kim passed that information on to the appellant: that is, the registration number SYX-642, of a white Holden “Berlina” (Barina). It was in a white Holden Barina SYX-642, driven by…

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.

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Details

Case: [2006] NSWDC 25
Decision Date: 23 May 2006

CaseChat Overview and Summary

Nguyen was arrested for drug trafficking offences and brought before the court. He sought to exclude evidence obtained from intercepted telephone communications that were allegedly encrypted with codewords for drug-related activities. The admissibility of this evidence was central to the case, as it was pivotal to the prosecution's case. The court needed to determine whether the expert evidence provided by an experienced police operative, who interpreted these codewords, was admissible and could be relied upon to establish the alleged drug trafficking activities.

The legal issues before the court included the admissibility of expert evidence under the relevant provisions of the Evidence Act and whether the interpretation of codewords in intercepted communications could be considered a specialised skill or knowledge. The court had to examine whether the evidence provided by the police operative could be classified as expert evidence and whether it was necessary for the court to understand the evidence. Additionally, the court needed to assess the reliability and relevance of the evidence in proving the charges against Nguyen.

In delivering the judgment, the court found that the evidence provided by the police operative was admissible. The court accepted that interpreting codewords used in intercepted communications was a specialised skill that required specific knowledge and experience. The expert evidence was deemed necessary for the court to understand the evidence and was reliable based on the police operative's extensive experience and expertise in the field. Consequently, the court ruled that the evidence was relevant and admissible, and the trial proceeded with this evidence being considered by the jury. The final orders of the court allowed the admission of the expert evidence in the trial against Nguyen.

Orders