Regina v Phuong Van Nguyen

[2000] NSWCCA 285

CITATION:	Regina v Phuong Van Nguyen [2000] NSWCCA 285
FILE NUMBER(S):	CCA 60542/99
HEARING DATE(S):	02/08/00
JUDGMENT DATE:	22 August 2000
PARTIES :	Regina Phuong Van Nguyen
JUDGMENT OF:	Beazley JA at 1; Greg James J at 2; Kirby J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/1018
LOWER COURT JUDICIAL OFFICER :	Stewart A/DCJ

COUNSEL :	P G Berman (Crown) T A Game SC (App)
SOLICITORS:	S E O'Connor (Crown) Mark Clees & Assocs (App)
CATCHWORDS:	CRIMINAL PRACTICE & PROCEDURE - Appeal against conviction and sentence - Identification - Proviso to s6(1) Criminal Appeal Act, 1912
LEGISLATION CITED:	Drug Misuse and Trafficking Act, 1985 - s25(1): s29(1) Evidence Act, 1995 - s116(1)(a) and (b): s165(1)(b): s165(2)(a), (b) and (c) Criminal Appeal Act, 1912 - s6(1)
CASES CITED:	R v Firman (1989) 52 SASR 391 Kelleher v The Queen (1974) 131 CLR 534 Mraz v The Queen (1955) 93 CLR 493 R v Edwards (1993) 178 CLR 193 Zoneff v The Queen [2000] HCA 28 R v De-Cressac (1985) 1 NSWLR 381
DECISION:	Ref para 34

IN THE COURT OF

CRIMINAL APPEAL

60542/99

BEAZLEY JA
GREG JAMES J
KIRBY J

Tuesday 22 August 2000

REGINA v PHUONG VAN NGUYEN

JUDGMENT

1   BEAZLEY JA: I agree with Kirby J.

2   GREG JAMES J: I agree with Kirby J.

3 KIRBY J: Phuong Van Nguyen and An Van Nguyen were charged that on 23 September 1998 at St Peters they supplied a prohibited drug, heroin (s25(1) and s29(1) Drug Misuse and Trafficking Act, 1985).

4   The trial proceeded before Acting Judge Stewart and a jury. Both accused were found guilty. Mr Phuong Van Nguyen (the appellant) appeals against his conviction. He also seeks leave to appeal against sentence.

The Background

5   On 23 September 1998, the police obtained a warrant to search premises at 91 Frederick Street, St Peters. A video was made of the search as it was undertaken. After the police arrived, there was some delay before the door was opened. The only occupants of the premises were Mr An Van Nguyen and Mr Phuong Van Nguyen. The house itself was bare. There were no furnishings, apart from a bed roll, a TV and a video. There were a few pots and pans in the kitchen, and a refrigerator. There was nothing upstairs. There were no clothes. There were none of the accompaniments of ordinary living. There was nothing to suggest the presence of a woman and a young child (a matter relevant to the account later given by the appellant).

6   A number of items were discovered in the course of the search. They were consistent with the operation of a business supplying heroin. At the rear of the premises, there was a plastic bottle. The bottle contained five pieces of white rock-like substance, later identified as heroin. The bottle was concealed beneath pebbles.

7   Further, a hole had been cut into a pipe beneath the kitchen sink. The pipe led to a drain. Within the drain, and sealed to prevent the intrusion of water, the police found more heroin. It was packaged in silver foil and balloons. The balloons had been cut, and each end tied with a knot. The Crown invited two inferences. First, that the hole in the pipe had been cut to enable the rapid disposal of heroin in the event of a search. Water from the kitchen tap pushed the watertight balloons into a sump from which they could later be retrieved. Secondly, the delay in opening the door to the police was used to flush the heroin into the sump.

8   The search also revealed the paraphernalia associated with the sale of drugs. On top of the refrigerator there was aluminium foil. A small rectangular section had been cut from the foil. There was a pair of scissors. There were small squares of aluminium foil within a kitchen cupboard. There was a box of balloons, as well as a syringe. Within a vacuum cleaner, there were the off-cuts of balloons.

The Crown Case

9   The Crown was required to deal with two issues. First, the charge was that the two accused had supplied heroin on a particular day (23 September 1998). Fundamental to that charge was that the heroin found at the premises, 91 Frederick Street, was in the joint possession of the two accused. Secondly, the Crown was obliged to demonstrate that the heroin was available for supply. This was not a case where the heroin found at the premises was offered to someone for sale. Supply had to be inferred from the circumstances of joint possession.

10 If the Crown were able to prove joint possession, the Drug Misuse and Trafficking Act, 1985 assisted the Crown in respect of the second requirement. The aggregate weight of the heroin in the plastic bottle, and that retrieved from the sump, was 6.7 grams. Under the Act (s29), possession of a trafficable quantity of heroin is deemed to have been possession for the purposes of supply. A trafficable quantity is 3.0 grams. The statutory defence by which the operation of the deeming provision may be avoided was not raised.

11   How, then, did the Crown seek to prove joint possession, given that the heroin found at the premises was physically remote from the two individuals who occupied the premises? The Crown relied upon three things.

12   First, there was evidence to connect each accused with the premises, quite apart from their presence on the day of the police search. Mr Phuong Van Nguyen had leased the premises on 1 September 1998, three weeks before the search. He said he had done so to house his wife and young child. He said that he had spent perhaps half of the preceding weeks at the premises. His wife and child had been there longer. Mr An Van Nguyen was Mr Phuong Van Nguyen’s brother-in-law. He acknowledged having been to the premises every few days, and sometimes twice a day, to visit his sister and her child.

13   Secondly, there was evidence from a number of witnesses who had purchased heroin from the premises within the preceding three weeks. Each said that they had gone to the premises for that purpose. Indeed, whilst the search of the premises was under way, two individuals came to the premises. When questioned by police, they each identified their purpose as the purchase of heroin (cf R v Firman (1989) 52 SASR 391).

14   Thirdly, on the day before the search (22 September 1998), a young man, Mr Norman Yenney, was seen entering the premises. A short time later he was seen leaving the premises. He was stopped by police. When searched, he was found to have heroin in his possession. It was packaged in aluminium foil inside a small balloon. He told the police that he had purchased the heroin a short time before from some Asian males at a house in Frederick Street. Mr Yenney was then arrested. He was charged with having been in possession of heroin. He later gave evidence for the Crown.

15   Mr Yenney described five transactions in which he purchased heroin in the two weeks preceding 22 September 1998. Each transaction was undertaken in the house at Frederick Street. Each purchase was made from an Asian male known to him as “Jason”. Jason was later identified as Mr An Van Nguyen, the co-accused of the appellant. Mr Yenney said that on three of these occasions a person, whom he later identified as the appellant, was present. Indeed, on one such occasion, he handed the appellant the money whilst Jason retrieved the drugs from the rear of the house. The drugs, when received, were packaged in foil inside a balloon.

16   Mr Yenney provided the police with a description of the two persons with whom he had dealt. The description was consistent with the appearance of Mr An Van Nguyen and Mr Phuong Van Nguyen. Both accused, on advice, declined to participate in an identification parade.

17   No steps were taken by the police, at that time, to have Mr Yenney identify, by reference to photographs, the persons with whom he had dealt. Almost one year later (on 6 July 1999), as the matter was about to go to trial, Mr Yenney was asked to identify the people from whom he had purchased the heroin. He attended the Campsie Police Station where he was shown two videos by Const Lamey. The identification of Mr An Van Nguyen (the appellant’s co-accused) occurred in the following circumstances, described by Const Lamey: (T.62/63)

“I inserted a video cassette marked ‘B’ into the video player. At the end of the video, Mr Yenney nominated photographs numbered one, four and ten. I rewound and played the video marked ‘B’ again, at the request of Mr Yenney. Mr Yenney delayed the tape on photograph number four.
He said, ‘That would appear to be the one that called himself Jason, which is the one I dealt with’.”

18   Const Lamey then played the second video. It included a photograph of the appellant. His evidence as to Mr Yenney’s response was in these terms: (T 63)

“He said, ‘I reckon that’s another one, the other one. I’m pretty sure about number seven. Twenty rings a bell, I’ll look at them again.’
I rewound and played the video marked ‘A’ again at the request of Mr Yenney.
He said, ‘I don’t know about number twenty, maybe I’ve seen him somewhere different. In regards to the house at Sydenham, I’m pretty sure it is number seven on this tape, and number four on tape ‘B’.’”

The Case for the Appellant

19   The appellant denied ever having met Mr Yenney. He denied knowing that there were drugs on the premises. He further denied that anyone came to the premises seeking drugs.

20   The appellant acknowledged, however, that the aluminium foil found on top of the refrigerator had been purchased by his wife. He said, moreover, that the box of balloons was a gift from him to his young daughter. He provided what can only be described as a ludicrous explanation for the off-cuts of the balloons found in the vacuum cleaner. One gathers from his explanation that he grew tired of blowing up the balloons for his daughter. He, therefore, cut off their ends in front of her. He later vacuumed. He had no explanation for the fact that the remnants, when vacuumed, included only the ends of the balloons and not the more substantial middle section.

The Issue of Identification

21   There are a number of grounds of appeal. Ground 2 was in these terms:

“The trial Judge failed to direct the jury adequately on identification.”

22   Mr Yenney was obviously an important Crown witness. If accepted, he transformed a strong Crown case into one which was overwhelming against each accused. Acceptance of his evidence, however, turned upon the identification of each accused, and their role in each sale. His Honour correctly characterised this issue, in his directions to the Jury, when he said this:

“The case is very much about identification in some ways ….”

23   Whilst there could be no issue as to the presence of the appellant and Mr An Van Nguyen at the time of the search (since they appeared on the video), there was, in his Honour’s words, “a very real issue about the identification by Mr Yenney”.

24   The appellant asserts that his Honour’s directions did not meet the requirements of s116(1)(a) and (b), and s165(1)(b) and, s165(2)(a), (b) and (c) of the Evidence Act, 1995. Redirections were sought by counsel for the accused. The Crown joined in that request. His Honour, however, declined to redirect the Jury on this issue.

25   Counsel for the Crown, on this appeal, has conceded that his Honour’s directions did not meet the requirements of the Act. There was no reference to the period of ten months between the events described, and the identification made at the Campsie Police Station. There was no reference to the identification having been made from photographs, and the potential for unreliability. Although there was a reference to the need for special caution, there was no elaboration, nor an indication of the matters relevant in the circumstances (contrary to s116(1)(b) and s165(2)(b) and (c)). Specifically, there was no reference to the possible dangers arising from a person of one race identifying someone from a different race.

26   The concession by the Crown was properly made. The instructions on identification did not meet the requirements of the Act. There was, therefore, error on an important issue.

27   The appellant asserted a number of other errors. The Crown argued that, in each case, the directions given by his Honour were adequate. I do not believe it is necessary to deal with each issue, in view of the conclusion I have reached in respect of identification. Since there was error on an important issue, it is convenient to move directly to the proviso.

The Proviso

28 The Crown urged the application of the proviso to s6(1) Criminal Appeal Act, 1912. Notwithstanding the error, the Crown asserted that there had been no substantial miscarriage of justice. The case against Mr Phuong Van Nguyen, it suggested, was overwhelming.

29   However, the only evidence which unambiguously connected the appellant to the heroin, was the evidence of Mr Yenney. It was Mr Yenney who specifically identified the appellant as a participant in the enterprise of selling heroin. The words of Gibb J in Kelleher v The Queen (1974) 131 CLR 534 are, therefore, apposite: (at 550/551)

“Experience, including recent experience, has shown that such miscarriages can occur even when all the precautions provided by the law as safeguards against mistaken identification have been fully observed. It is therefore obviously necessary that at a trial where the evidence implicating the accused is evidence that he was identified by a witness or witnesses who were not previously acquainted with him, both judge and jury should be constantly alert to guard against the possibility that the evidence may be mistaken and an innocent man convicted. I would respectfully endorse the words of Lord Morris of Borth-y-Gest in Arthurs v Attorney-General (Northern Ireland) ((1970) 55 Cr App R 161 at 168):
‘It is manifest that in cases where the vital issue is whether the identification of the accused person is certain and reliable the judge must direct the jury with great care. However careful is his general direction as to the onus of proof, the judge will feel it necessary to deal specifically with all the matters relating to identification.’”

30   There being error on an important issue, before the proviso can be applied, the Court, having reviewed the whole of the evidence, would need to be satisfied that any jury, properly instructed, was certain to convict the appellant (Kelleher v The Queen (supra) per Barwick CJ at 540). Expressed in another way, the proviso cannot be applied if the appellant has, by reason of the error, lost the chance which was fairly open to him of being acquitted (Mraz v The Queen (1955) 93 CLR 493 at 514).

31   I have said already that it was a strong Crown case. The appellant’s denial of complicity was coupled with a fanciful explanation for the balloons. However, the jury, were they to reject the appellant’s version, should have put that version to one side. The jury would then have been required to examine whether, on the evidence presented by the Crown, the appellant’s guilt had been proved beyond reasonable doubt. Although unquestionably conviction of the appellant on such evidence was highly likely, I do not feel myself able to say that it was certain. I cannot exclude the possibility that the appellant, by reason of the error, may have lost the chance of an acquittal which was fairly open to him.

32   In reaching that view, I am conscious of the fact that, in a new trial, the Crown may seek to tender the evidence of the appellant given in the present trial. It may, at the same time, seek from the trial Judge a direction (not provided in the present trial) that the false explanation given by the appellant was provided through a consciousness of guilt (R v Edwards (1993) 178 CLR 193; Zoneff v The Queen [2000] HCA 28) Were that course taken, the jury would then be entitled to take account of the false explanation (assuming that it so determined) on the question of guilt. The Crown case, in that circumstance, may be such that a conviction would be inevitable.

33   I should not, however, have regard to the likely outcome of any new trial in determining whether, in the present trial (where error has been demonstrated) there was a substantial miscarriage of justice (cf R v De-Cressac (1985) 1 NSWLR 381, per Street CJ at 390).

34 I therefore decline to apply the proviso to s6(1) of the Act. I believe that the appropriate orders are as follows:

1. That the appeal should be allowed.

2. That the conviction and sentence of Phuong Van Nguyen should be quashed.

3. That there should be a new trial.

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