Tran v The King

Case [2024] SASCA 27

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

TRAN v THE KING

[2024] SASCA 27

Judgment of the Court of Appeal  

(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice McDonald)

21 March 2024

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

The appellant seeks permission to appeal against convictions for eight drug and firearm offences. The offences related to the possession of methylamphetamine, and various firearms and related items, located in a subwoofer box in the boot of the vehicle the appellant was driving when stopped by police.

The appellant seeks leave to appeal his convictions on four grounds. Grounds 1 and 2 involve complaints that the trial judge erred in admitting various items of discreditable conduct evidence. Ground 3 complains that the verdict of the jury in relation to count 1 (trafficking in a commercial quantity of a controlled drug) was unreasonable or cannot be supported having regard to the evidence.  Ground 4 complains of a miscarriage of justice said to have been occasioned by the cross-examination of the appellant, and submission of the prosecutor in her closing address, which the appellant contends invited the jury to engage in consciousness of guilt reasoning.

Held per the Court, granting permission to appeal but dismissing the appeal:

1.The trial judge did not err in admitting discreditable conduct evidence in accordance with s 34P of the Evidence Act 1929 (SA);

2.The jury verdict on count 1 should not be set aside on the ground that it is unreasonable or cannot be supported. When considered as a whole, the prosecution evidence established beyond reasonable doubt the appellant’s possession of the methylamphetamine in the subwoofer box; and

3.In light of the Zoneff direction given by the trial judge, there was no risk of the jury engaging in reasoning involving a consciousness of guilt.

Controlled Substances Act 1984 (SA) s 32(2); Evidence Act 1929 (SA) s 34P; Firearms Act 2015 (SA) ss 9(1), 27(1), 31(1), 39(1), referred to.
Adelaide Marble Specialists Pty Ltd v Ragunath [2023] SASC 139; Dansie v The Queen (2022) 274 CLR 651; Edwards v The Queen (1993) 178 CLR 193; Elrick v The Queen [2021] SASCA 13; Hammer v The Queen [2022] SASCA 75; Hinrichsen v The Queen [2023] SASCA 111; Johnson v The Queen (2018) 266 CLR 106; Kroni v The Queen [2021] SASCFC 15; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123; R v Falzon (2018) 264 CLR 361; R v Garner [2021] SASCA 68; R v…

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AGLC
Tran v The King [2024] SASCA 27
Case
[2024] SASCA 27
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for drug offences. The appellant, Mr Tran, was stopped by police while driving a vehicle with his partner and child. During the stop, police found items in the vehicle, including cut-down drinking straws, alfoil with burnt residue, a plastic bag with traces of a white substance, and mobile phones. The appellant's partner was found to have a significant amount of cash and an ice pipe concealed in her bra, which the appellant stated was his. A drug detection dog indicated the presence of drugs in the vehicle, leading to the discovery of resealable plastic bags concealed under the gearstick. The appeal was heard by Doyle, Bleby, and McDonald JJ.

The legal issues before the court included whether the verdict was unreasonable or insupportable having regard to the evidence, and whether there had been a miscarriage of justice due to misdirection or non-direction by the trial judge. Specifically, the court considered the evidence relating to the items found in the vehicle and the appellant's possession, and the circumstances surrounding their discovery, including the concealment of the plastic bags.

The court granted permission to appeal on all grounds but ultimately dismissed the appeal. The reasoning focused on the sufficiency of the evidence to support the conviction, particularly in relation to the items found and the appellant's admissions. The court found that the evidence, when considered as a whole, was not so weak as to render the verdict unreasonable or insupportable. The appeal was dismissed on the basis that no miscarriage of justice had occurred.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons which follow, we grant permission to appeal but dismiss the appeal.The evidence at trial It is appropriate to commence by summarising the evidence at trial. As mentioned, the prosecution case at trial consisted largely of evidence in relation to items found in the vehicle the appellant was driving when stopped by police, in the physical possession of the appellant and his partner at the time, and during the subsequent search of the appellant’s premises.The initial stop and search of the vehicle, the appellant and his partner In the early afternoon of 31 July 2019, the appellant was driving a Toyota motor vehicle on Salisbury Highway, Greenfields. His long-term partner, Ms Pakkawan, was in the front passenger seat. One of their two young children was in an infant car seat in the rear of the vehicle. At about 1.00 pm, Detective Brevet Sergeant Tieman and Senior Constable Matheson stopped the vehicle to conduct a licence check. The appellant told DBS Tieman that he did not hold a licence, and that the vehicle was registered to a friend of his named David. Checks conducted by police revealed that the vehicle was registered to a David Prideaux.[6][6] Registration papers in his name were also found in the vehicle. Police searched the vehicle. In the driver’s side door, they located some cut-down drinking straws. In the centre console they located two pieces of alfoil with a burnt residue on them; a small plastic bag containing traces of a white substance; a wallet containing various cards naming the appellant and another piece of alfoil, and a mobile phone (black iPhone). In the glovebox, they located various items of correspondence addressed to the appellant and Ms Pakkawan.[7] A second mobile phone (gold Samsung) was located in a bag in the front passenger footwell.[7] Two letters were addressed to the appellant, and one to Ms Pakkawan, all at their Underdale premises. The letters were unopened, and there was no evidence as to their date (although in the photographs which are Exhibit P1 it appears that one of the letters bore a date stamp from late July 2019). When informed by police of what they had found in the vehicle, the appellant said that he “use[d] a little bit”. The appellant was asked whether he had anything concealed on his person, and he said that he did not. A search of Ms Pakkawan revealed $2,250 in cash (comprised of 45 x $50 notes) and an ice pipe concealed in her bra. The appellant told police the ice pipe was his.[8] Ms Pakkawan also had an iPhone in a pink case.[8] Later, in his oral evidence, he said the cash was theirs jointly, and gave an explanation for it. A drug detection dog was brought to the scene by Senior Constable Struthers. The dog provided indications to the plastic trim around the gearstick and a subwoofer box in the boot of the vehicle. SC Struthers located a number of resealable plastic bags concealed underneath the gearstick. The evidence did not reveal what was required to remove the gear housing in order to locate the bags. Nor did it reveal whether the bags were in a position which suggested they had been deliberately concealed, or might simply have fallen into the location they were found.

Decision

Reasons for decision

Ground 4 has not been made out.Conclusion For the reasons given, we grant permission to appeal on each ground, but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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