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 Phu, that police later found, on 8 February, a quantity of heroin in a bag with some vegetables. As arranged in the phone calls between the appellant and Kim from 27-28 January, a delivery of heroin to "Fatty Bobby" occurred on 29 January 1999. At about 10.30 am Ngai was observed entering and then shortly thereafter leaving 2 Tenterfield St, North Strathfield. He then drove to the same area in Homebush West where police had previously observed him. In the same area at this time was so, in parked vehicle OQX-850, as were two Asian males in a white Holden Barina SYX-642. One of these men was later identified as the offender Anthony Phu; the other was identified by the appellant as "Fatty Bobby". At about 11am Ngai walked to a vehicle SYX-642, then walked away from it carrying a white bag. The vehicle was later seen in Bondi to contain a white plastic bag.

On 7 February 1999, during a conversation with the appellant commencing about 12.43pm, Kim arranged for the supply of "two bowls" (a quantity of heroin) to "Fatty Bobby” The appellant also indicated the last time the person was supplied with "one". The transaction was to take place at 11 am the following day. On 8 February 1999, at about 10.29, Ngal entered 2 Tenterfield St, leaving at about 10.40am carrying what seemed to be a white plastic bag. Ngai then drove to Homebush West area. Also in the area was so, as was Phu in the white Holden Barina SYX-642. At about 11.01 someone walked away from the Barina after checking that the front passenger door was unlocked. At about 11.05, Ngai placed a white plastic bag into the Barina through the front passenger door, and returned to his vehicle and drove away. At about 11.09 on 8 February, the white Barina SYX-642 was stopped by NCA investigators and searched. Phu was the only occupant. A white plastic bag was found on the front passenger side floor. It contained a number of vegetables and two blocks of compressed white powder. Phu was arrested. Subsequent testing of the two blocks established that they contained heroin that weighed 1.395kg and were 72 and 75 percent pure heroin respectively. Shortly after, the vehicle driven by Ngai was stopped and he was arrested. Around the same time, a vehicle VGN-889 (Kim's car) being driven by the appellant was stopped and he was arrested.”

3 The Crown case is that the "appellant" was a man known as Duncan Lam and that the accused was his mistress. The Crown alleges that the accused spoke by telephone on a number of occasions to Duncan Lam and other men and that she was instrumental in making arrangements for the sale of heroin on the eighth of February 1999. The Crown case consists of the tapes of intercepted telephone calls, transcripts of those calls and some surveillance evidence by Federal police officers.

4 I have been told by the Crown that without the evidence of the telephone intercepts, there would be no case against the accused, since she was not at any time observed by police to be doing anything in any direct fashion with heroin.

5 Both parties have agreed, subject to some relatively minor matters, that the transcripts of the telephone calls should be regarded as being accurate. There is also agreement as to the voice of the accused being on the tapes, as well as the voice of Duncan Lam and the voices of other men. On the 8th of February 1999 Federal police arrested a number of people, including the accused and charged them with offences of dealing in heroin. Heroin was found in a motor vehicle and it is agreed that they accused referred to that motor vehicle bites registration number and description and also referred to the day on which it was intercepted, with heroin in it.

6 The Crown wishes to call evidence from Mr Michael Drury, a former New South Wales Detective Chief Inspector, who had worked for many years as an undercover officer dealing with drug offenders and who had trained other police in doing this work.

7 It is relevant to relate that on the 7th of March 2001, Judge Holt, Q.C. presided over a jury trial in which Duncan Lam and a number of other persons were charged with a conspiracy to supply heroin. The accused was referred to in the indictment, and her role was described by the Court of Criminal Appeal in the decision to which I have already referred, but she was not one of the accused at that trial.

8 That trial, concerned, the drug transaction which is the subject of the current trial, but as well is that, it concerned an additional supply of more than 13 kg of heroin, which was found in the boot of a car in a drug safe- house.

9 Mr Drury, who at that stage was still in the New South Wales Police Force, was called as an expert witness at that trial and to equip himself for that role, he was shown a large number of transcripts, which occupy two volumes in lever arch folders. He was asked to assume that the transcripts were correct renditions of telephone calls. Those asking him to perform this task gave him the identities of the persons who were speaking on the telephone. At no time did he listen to the calls.

10 At the time he was investigating a drug-related matter in New South Wales, and he knew of some of the persons involved in the Duncan Lam trial. He was shown photos of heroin seized in the car on the 8th February 1999 (i.e. the heroin in the current trial) and photos of the heroin in the boot of the car at the drug safe house. He knew who Duncan Lam was and knew that he was a drug dealer.

11 Additionally, Federal police who were investigating, Duncan Lam spoke to him about the matter shortly after the arrest in 1999 and from time to time since may have spoken to him about the matter. He has no notes of what they may have told him.

12 He took all that information into account when he expressed the opinion that he did in the 2001 trial of Duncan Lam and others. When this trial started, Mr Peter Faris Q.C., senior counsel for the accused, took objection to the admissibility of the evidence of Mr Drury. I looked at the 1999 statement and expressed the opinion that it did not comply with District Court Rules concerning the giving of expert evidence. Two further statements were prepared by Mr Drury, dated the 12th of May 2006 and the 17th of May 2006. Mr Drury was called to give evidence on the voir dire. During cross-examination, he agreed that he had regard to a large number of matters that were not mentioned in either of his statements of June 2006. In particular, he had regard to hearsay material passed on to him by police officers, he had regard to all the transcripts of evidence, which he considered contained codeword or code jargon, and to the fact that Duncan Lam was involved in the present transaction and involved in the larger 13 kg transaction. He also had regard to what he saw in some photographs of heroin that had been seized. Relying on all of this material and on his own experience and knowledge, he was able to express clear opinions that in the transcripts relied on by the Crown for the present case; there were coded references to the buying of heroin. He had no doubt that heroin was the drug that was involved.

13 Mr Faris submitted that I should not permit this evidence to be given, principally because the Crown did not intend to prove many of the facts on which Mr Drury based his opinion. Certainly the Crown case, as it was put to me, did not involve proof that Mr Lam and a number of other men were involved in a general conspiracy with the accused to sell heroin in two quite large quantities.

14 The Crown does not propose to describe Mr Lam's role in any greater detail than it is set out earlier in this judgment.

15 There is no doubt that Mr Drury gave evidence in the Lam trial, but largely with the agreement of the accused's counsel, who did not contest his qualifications as an expert witness. Mr Lam and the other persons on trial with him were all convicted and are currently serving terms of imprisonment.

16 The question which I have to determine is not whether Mr Drury can properly be regarded as an expert in the subject of drugs, particularly the use by those in the drug trade of coded conversations, but whether he can be permitted to give evidence in this case in a situation where he has formed opinions for the purposes of the Lam trial on a much more extensive set of facts than the Crown intends to prove in this case, and which the Crown does not intend to put before the jury.

17 Mr Faris puts considerable reliance on the decision of the Court of Appeal in Makita Australia P/L v. Sprowles (52 NSW LR 705, particularly at paragraphs 64):

“64. The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are “sufficiently like” the matters established “to render the opinion of the expert of any value”, even though they may not correspond
“with complete precision”, the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509–510; Paric v John Holland (Constructions) Pty Ltd (at 846; 87). One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship”(per Heydon J.A)

18 His Honour in a lengthy exposition of many authorities, referred interestingly to a South Australian case, which concerned a jury trial. He said:

" 70. A further illustration of the importance which the law attaches to the identification, whether formally or informally of the assumed facts, is R v Fowler (1985) 39 SASR 440 at 442. King CJ said:

“ ¼ It must be kept steadily in mind that the court (the jury in a jury trial) is the tribunal of fact and that it is no part of the function of a witness to decide what version or interpretation of the facts is to be accepted or rejected. The witness who expresses an opinion as to the likely or possible state of mind of the accused at a given time must give his opinion upon an assumed state of facts postulated to him or by him for that purpose. Strictly speaking it is not permissible for him to recount what he has been told, as distinct from what he assumes as the basis of his opinion, as that would result in hearsay material coming to the notice of the Court. The strictness of this rule is often relaxed in civil proceedings where there is no jury, as the judge is able to disregard the hearsay as non-probative and discount the opinion if the assumption of the witness as to the correctness of the hearsay material is not substantiated by admissible evidence. But adherence to the rule is of the utmost importance when the evidence is given before a jury. The position is somewhat different where a medical witness who has examined a person is called to express an opinion as to his mental or physical condition. In such a situation the history given by the patient and the very fact that he gives such a history is as much part of the material upon which the opinion is formed as the physical examination and is invariably allowed to be given in evidence by the medical witness. But even in that case what the patient has told the medical witness is not evidence of the truth of what is related, except so far as it may be admissible against the patient as an admission or may be admissible as a contemporaneous statement as to his sensations, and the validity of the opinions expressed will be affected if what is related is not substantiated by evidence.”

(At 443) he said:

“The course, which was sought to be adopted in the present case of asking the opinion of the witness as to the possible mental condition of the accused at the time of the alleged crime, based not upon assumed facts, but upon a reading of the whole of the evidence and the accused’s account of his drug ingestion, is not acceptable and such evidence cannot be admissible. It involves the expert in making his own unstated findings of fact and his own interpretation of them. The jury might arrive at different conclusions of fact and a different interpretation of the facts. Clearly a witness cannot be permitted to express his findings and interpretations of fact, and there would therefore be no way by which the jury could know whether the opinion could stand in the light of the jury’s view of the facts.
If, therefore, evidence of opinion is to be adduced at the new trial as to the accused’s mental condition at the time of the killing deduced from his behaviour and ingestion of drugs, it is of the utmost importance that the assumptions of fact upon which the opinion is arrived at be clearly stated and that the evidence be confined to opinions expressed upon those stated assumed facts.”

19 His Honour went on to give some further examples, taken from criminal cases:

“71. In Holtman v Sampson [1985] 2 Qd R 472 at 474, D M Campbell J, Macrossan J and Thomas J said:

“ ¼ it is a primary tribunal’s duty to find ultimate facts, and, so far as it is reasonably possible to do so, to look not merely to the expertise of the expert witness, but to examine the substance of the opinion expressed. But that is not to say that a tribunal may not accept the opinion of an expert witness. In cases where the experts differ, the lay tribunal will apply logic and commonsense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted.” Examining the substance of an opinion cannot be carried out without knowing
the essential integers underlying it.
72. In Bell v F S & U Industrial Benefit Society Ltd (McLelland J, 9 September 1987, unreported), McLelland J said that the importance of proving the facts underlying an opinion was that the absence of such evidence deprives “the court of an important opportunity of testing the validity of process by which the opinion was formed, and substantially reduces the value and cogency of the opinion evidence”.
73. In Lewis v The Queen (1987) 88 FLR 104 at 123–124, Maurice J said:
“Forensic evidence, especially if it goes to a vital issue implicating an accused person in the commission of an offence, may often have a prejudicial effect on the minds of a jury, which far outweighs its probative value. The jury, being people without scientific training, may often be impressed by an expert’s qualifications, appointments and experience and the confident manner in which he expresses his opinions. And yet it ought not be left to such matters alone to provide a foundation for the jury making an assessment of the probative value of forensic evidence, particularly where there are conflicts in expert testimony, or where it is acknowledged that other experts of more or less equal distinction are unlikely to agree.

For my part I think that whenever the Crown wishes to rely upon forensic evidence the prosecutor has a clear duty, not just to his client, the Crown, but to the trial judge and the jury to acquaint them, in ordinary language, through the evidence he leads, with those aspects of the expert’s discipline and methods necessary to put them in a position to make some sort of evaluation of the opinions he expresses. Where the evidence is of a comparatively novel kind, the duty resting on the Crown is even higher: it should demonstrate its scientific reliability. It is not an answer to considerations that dictate these things to be done to say the defence may draw it out in cross-examination; that is an abdication of the Crown’s primary function in a criminal prosecution. There is a tendency amongst academics, professionals and others who develop skills in a particular area to mystify their field, often by the use of what seems to the outside to be arcane language. It is the role of a prosecutor to strip forensic evidence of its mystery so far as is possible; trial by expert must never be allowed to take the place of trial by jury. The inability to articulate the principal tenets that need to be understood, to describe in ordinary language the methods used and the reasons that point to a particular conclusion, these are the hallmarks of unreliable science and the not-so-qualified expert.” These words were applied in R v Lucas [1992] 2 VR 109 at 116–117 by Hampel J. Though they were used in the context of criminal cases, they have application in civil cases as well.”

20 Later, he expressed what he regarded the law to be in these words:

“85. In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialized knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v The Queen (at 428 [41]), on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning, which went well beyond the field of expertise”.

21 Since this decision, the Federal Court of Australia has given consideration to the question of the extent to which an expert witness must state the assumption of facts on which he relies in order that his opinion may properly be tested. It seems quite clear that in the Federal Court, it is not accepted that for an opinion by an expert to be admissible, the facts or assumed facts must be stated identified and proved. (See Sydneywide Distributors Proprietary Limited v Red Bull Australia Pty Ltd (2002 IPR 354) at paragraphs 16 (Branson J. and 87 Weinberg and Dowsett J. J., Cadbury Schweppes, v Darrell Lea Chocolate Shops Proprietary Limited [2006 FCA 363] and the cases cited at paragraph 7.)

22 In the Federal Court there seems to be acceptance of the proposition that even if the facts are not fully established by the expert as being assumed by him or independently proved by other evidence, the report should not be rejected, but its weight should be considered at the end of the case.

23 Makita v Sprowles seems to have been considered by the Court of Criminal Appeal in one case only, Regina v. Howard [2005] NSWCCA 25 at paragraph 24 to 26. Their Honours referred to the apparent differences between Hayden J. A. and the judges of the Federal Court about this matter, but drew no conclusion as to which view was the preferable one.

24 In my opinion, Hayden J. A. has, with respect, set out in a masterly way, the orthodox common-law view about expert evidence. Many of the authorities on which he based his views were criminal trials or appeals from criminal trials. In many cases, even if the cases were not criminal in nature, a jury would have been involved at the trial, since most common-law trials until well into the 20th century were conducted with juries. His Honour also based his opinion on a number of decisions of the Federal Court of Australia, which preceded his decision and appear to have been decided differently to the decision of Sydneywide Distributors and subsequent Federal Court cases. It is of significance, in my opinion, that the Federal Court conducts only civil cases and never with a jury.

25 I am conducting a jury trial, and it seems to me, quite apart from the Makita decision, that it would be inappropriate and wrong in law to admit an opinion by an expert, which is unsupported by fact, leaving it to the jury to give whatever weight it felt should. Clearly, the jury must be given sufficient factual basis for the opinion, to enable its members to assess for themselves whether they accept the opinion.

26 Mr. Faris has referred to me, the Victorian decision of Regina v Anderson [2000] VSCA 16 at paragraph 59, where it is said:

" The trial judge has a continuing responsibility, particularly in a criminal trial where a witness has been allowed to express an opinion on a critical issue, to ensure that such opinion is not left for the jury's consideration where it has become clear that the person who has expressed it has no qualification to do so, or has provided no factual or scientific foundation for the opinion expressed (see Bugg v. Day (1949) 79 C.L.R. 442 at 456-7 per Latham, C.J.; R. v. Inch (1990) 91 Cr.App.R. 51 at 54; R. v. Marquard (1993) 85 C.C.C. 193 at 225). Although it is, of course, true that it is for the judge to decide whether an expert's opinion is admissible, and for the jury to decide whether the opinion is credible and what weight it should be given, it is also true that an opinion is only as good as the factual or scientific basis upon which it is expressed; and if no such basis is given or, if given, can be seen to be speculative or irrelevant to the opinion expressed, then the opinion will be worthless ( R. v. Turner [1975] 1 Q.B. 834 at 840 per Lawton, L.J.). In that sense the existence of such a foundation, or proper foundation, for the expression of opinion is a matter relevant to be taken into account on the question of admissibility ( R. v. Bonython , supra, at 48 per King, C.J.; R. v. J. (No.1) (1994) A.Crim.R. 522 at 531-2, per Brooking, J.).

27 With respect, I agree with those views.

Application to the present case.

28 In the present case, if that expression of opinion were followed literally, Mr. Drury would have to set out all the matters to which I have referred as being matters on which he has relied and the Crown would have to prove those facts. If that course were taken, the Crown would be forced to prove facts which established that Mr. Lam was involved in drug dealing much more extensively than is alleged in the present case, and the extent of the drug dealing, including photographs of the drugs seized and descriptions of where they were seized would have to be given. The Crown has said that it does not wish to call this evidence, because it is irrelevant to the case against the accused and would be very prejudicial to that case.

29 There is no doubt in my mind that Mr. Drury is, within the meaning of s. 79 of the Evidence Act 1995, a person who is qualified, because of his training study and experience, to express an opinion as an expert on the question whether particular persons were speaking in the type of code used by those involved in the drug trade. Indeed, he has given such evidence in court is on a number of occasions and has been accepted as an expert in those courts. (See Regina v Lam above).

30 Nevertheless, he must, if he gives this evidence, set out all the material upon which he relied. This would mean that he would need to refer to the fact that he has looked at an extensive set of telephone intercept material, which ranges far beyond that, which is relevant in this case; he would also need to refer to the fact that he knew who Duncan Lam was, that he knew he was a drug dealer and that he knew he had been arrested and charged for dealing in large quantities of heroin; he would also need to refer to the fact that he had seen photographs of the heroin seized from Mr. Lam and the heroin seized on the eighth of February 1999. He would also need to explain his process of comparing and contrasting different transcripts. He would also need to explain that he had had conversations with various police officers, who gave him information about the Lam investigation and he would need to set out the fact that he was involved in an investigation in New South Wales, which had some links with the Lam investigation.

31 Unless all of this material is set out, in my opinion, the jury is not in a position to evaluate the correctness of Mr. Drury's evidence. I have given consideration to the question whether he could be permitted to refer to all the above matters, but when referring to the material about Mr. Lam, merely saying that he had taken into account certain matters, which had come into his possession concerning Mr. Lam. However, on reflection, I do not think that could be permitted. Clearly, what he knew of Mr. Lam played a big part in helping him to come to an opinion about these various transcripts.

32 It is clear to me that Mr. Drury's expert opinion was sought for the Lam trial, and obviously he was permitted as an expert to inform himself of everything that was relevant, including the extent of the heroin seized, where it was seized and the identities of the main players, in particular, Mr. Lam. He cannot put this material out of his mind when he is asked to give evidence in this trial, even though he is now asked to express opinions about a narrower case. Had the accused been part of the original trial, it is difficult to see that this debate could have occurred.

33 I cannot permit an expert witness to give opinion evidence, unless the jury are given all the relevant facts upon which he based his opinion. To take any other course would be wrong.

34 I am obliged to follow the opinions of judges of the Court of Appeal, where they differ from the opinions of judges of the Federal Court. With respect, I consider the opinions of Hayden J. A. to be orthodox and correct and I intend to apply those opinions to this case.

35 The Crown has put to me that the case of Regina versus Van Tan Huynh (Court of Criminal Appeal New South Wales unreported 13th of May 1996) permits it to call the evidence of Mr. Drury without seeking in any way to prove all the facts upon which he relies. I do not agree. In my opinion, that case, says nothing of the present issue, since the expert witnesses in that case were accepted as experts and the controversy in the case about their evidence was whether they were entitled to express the opinion that coded discussions were in fact, discussions about heroin.

36 In my opinion, the Crown is entitled to call Mr. Michael Drury as an expert witness to give evidence about drug codes, in certain telephone intercepts, but it can do so only if it leads from him in chief all the facts and assumptions upon which he based his opinions, and if it is prepared to prove any of the facts which are accepted by him as assumptions. If the Crown is not prepared or willing to do this, that I will not permit Mr. Drury to give evidence.

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