Tran v The Queen

[2007] HCATrans 398

[2007] HCATrans 398

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M35 of 2007

B e t w e e n -

HIEP TAN TRAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 AUGUST 2007, AT 12.21 PM

Copyright in the High Court of Australia

MR P.G. NASH, QC:   If the Court pleases, I appear with my learned friend, MR D.J. HANCOCK, for the applicant.  (instructed by Access Law)

MR O.P. HOLDENSON, QC:   May it please the Court, I appear on behalf of the respondent.  (instructed by Director of Public Prosecutions (Vic))

CALLINAN J:   Yes, Mr Nash. 

MR NASH:   If the Court pleases, three preliminary matters, one we would seek leave to apply out of time. 

CALLINAN J:   Is there any problem about that, Mr Holdenson?

MR HOLDENSON:   There is no prejudice.  It is only opposed on the basis that the argument at the end of the day is doomed to fail.  Your Honours would have to hear the argument first, however. 

MR NASH:   I am sorry, your Honour.  I think my learned friend is thinking about the third application.

CALLINAN J:   You do not oppose any extension of time, Mr Holdenson?

MR HOLDENSON:   No.

CALLINAN J:   Thank you. 

MR NASH:   The second matter is that the application book contains the wrong version of the presentment.  We understand that the respondent has supplied the Court with a correct copy.  Nothing turns on the content of the presentment, in any case. 

CALLINAN J:   All right, and what is your third matter then?

MR NASH:   The third point is that we seek leave to add a ground and to add to our outline of argument a fresh point.

CALLINAN J:   You have made your position clear on that, Mr Holdenson.

MR HOLDENSON:   Yes, I did, your Honour. 

CALLINAN J:   You may proceed upon the basis, for present purposes, that you may argue that third additional ground.

MR NASH:   If the Court pleases.  Crucial to the conduct of this appeal is the learned trial judge’s response to the question asked.  In fact, this was not argued below in this form but, in our submission, nothing turns on that.

CALLINAN J:   Mr Nash, just remind me, what was the attitude of your client’s counsel to the answer that was given?

MR NASH:   Counsel’s response was that it was impossible to answer, but when one analyses it, what the jury in fact asked was, if we believe this man was not trafficking, what should we do?  That is really the substance of the question asked.  If the applicant knew that the heroin was in the house, he knew that Mr Vo was trafficking but he was not involved in the business, it was solely Mr Vo’s business, then we say that the question is really a question, what do we do if we are not satisfied beyond reasonable doubt that this man was trafficking?  The answer the learned trial judge gave – and I concede that counsel for the applicant at trial gave the learned trial judge no assistance whatsoever in respect of this – but we say that the answer to that question had to be, you must acquit of trafficking. 

Although our outline of argument puts the proposition that the learned trial judge did not direct the jury properly, the learned trial judge did make the correct statements of formula, but the formuli used were, we say, overtaken by the three‑page direction in answer to the jury’s question.  He told the jury that it was not possible to answer their question directly with a yes or a no.  Even though he may have directed properly in relation to the effect of the prima facie evidence provision in section 73(2), he did so in a context which said, “I cannot answer your question” and the answer to the question, even if given in fuller form that “you must acquit” would have read something like this.  Possession creates prima facie evidence of trafficking.  Possession of itself without more could justify a conviction but, if after giving due weight to the inference which may arise from possession, you are not satisfied beyond reasonable doubt that the accused was trafficking, you must acquit him on that charge.  If Mr Vo was the only person trafficking and you are not satisfied beyond reasonable doubt that the accused was either trafficking or involved in Mr Vo’s business of trafficking, you must acquit on the charge of trafficking. 

In our submission, that was the only proper answer to be given to that question.  The jury asked a question, “If Mr Vo was trafficking and this man was not, what do we do?”  They received a three‑page answer which said, “I cannot answer that yes or no”.  In fact, the trial judge could answer it, “You do not convict of trafficking, you acquit on the trafficking charge”.

If the Court pleases, there are a number of other matters in the outline of argument.  This, in our submission, is the crucial issue.  If the Court is against us on this point, we fail, but we say that this was a case where the jury’s question indicated clearly that they were considering a situation where this man was not trafficking.  The answer they had must necessarily have confused them because the answer indicated that, even if you are satisfied that Mr Vo was the only person trafficking, you may still convict this man.  If the Court pleases, and I know I have not used up my 20 minutes, in relation to the other matters we rely on the outline of argument, that is the submission on behalf of the applicant. 

CALLINAN J:   Yes, thank you, Mr Nash.  We need not hear from you, Mr Holdenson.

In our view there is no sufficient reason to doubt the correctness of the decision of the Court of Appeal.  Special leave is refused.

AT 12.29 PM THE MATTER WAS CONCLUDED