Nguyen v The Queen
[2015] NZCA 422
•9 September 2015 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA275/2015 [2015] NZCA 422 |
| BETWEEN | PHUONG ANH NGUYEN |
| AND | THE QUEEN |
| Hearing: | 8 July 2015 |
Court: | Cooper, Keane and Kós JJ |
Counsel: | M B Meyrick for Appellant |
Judgment: | 9 September 2015 at 11 am |
JUDGMENT OF THE COURT
A An extension of time in which to appeal is granted.
B The appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Keane J)
Between April and August 2011, New Zealand Customs intercepted eight packages labelled as medicines, clothing and DVDs sent by airmail from Vietnam, mostly from Hanoi, addressed to Vietnamese people at Auckland addresses. They contained in excess of 30,000 pseudoephedrine-based tablets.
On 5 August 2011, Van Anh Tran and Phuong Anh Nguyen were arrested and charged with importing into New Zealand those eight consignments of a class C controlled drug, between 9 April and 5 August 2011, and with possessing on the day of their arrest the last three of those packages, which had been the subject that day of a controlled delivery.
On 23 February 2012 Mr Tran pleaded guilty to all of those offences as they concerned him, and was sentenced to imprisonment for four years and one month. On 15 October 2013 he was deported from New Zealand.
Ms Nguyen, with whom on the Crown’s case Mr Tran was at the time in a relationship, denied any part in this offending. She accepted that she had assisted Mr Tran in the ways attributed to her, but only because they were in a relationship. She did not know what the packages contained, even one that Mr Tran had opened in her bedroom just before their arrest.
In the event Ms Nguyen did not go to trial until 3 December 2014, almost three and a half years after her arrest. She was then found guilty of importing five of the eight packages, and of possessing one of them on the date of her arrest. She was acquitted of importing three other packages, and of possessing on the day of her arrest another of the three delivered that day.
On 25 March 2015 Judge Ronayne sentenced Ms Nguyen to imprisonment for two years and seven months, concurrently for each of her offences, deeming her to have been as responsible as Mr Tran for the importations made to the extent of the jury’s verdict.[1] She appeals both her conviction and her sentence.
Grounds of appeal
[1]R v Nguyen [2015] NZDC 5000.
In her first two grounds of appeal against her conviction, Ms Nguyen contends that, as a result of a pre-trial ruling given by Judge Hastings on 23 October 2014, she was denied a fair trial.[2]
[2]R v Nguyen DC Auckland CRI-2011-092-16706, 23 October 2014.
Ms Nguyen does not contest Judge Hastings’ finding that the delay until her trial, while undue, fell short of being egregious and was not in itself a source of a miscarriage of justice. She contends rather that, as a result of that delay, she lost the ability to call Mr Tran as a witness to confirm that he was the sole offender and that her part was peripheral.
Ms Nguyen contends that she should, therefore, have been entitled to rely at her trial on evidence Mr Tran had given at the first of the two pre-trial hearings, which had concerned the admissibility of her statement to Customs officers on her arrest. Contrary to the Judge’s ruling, she contends that evidence was reliable hearsay evidence and admitting it would be a proportionate remedy to the systemic delay she had suffered.
Ms Nguyen contends, thirdly, that during her trial Judge Ronayne wrongly allowed a Crown witness, Customs Officer Swann, to give evidence when re‑examined that on Ms Nguyen’s arrest she had said that she had sold the cellphone central to the Crown’s case against her; and thus implicitly admitted to having owned it.
This late and unexpected evidence, she contends, should have been given in the first instance at the pre-trial hearing at which her statement was in issue. It would then have been ruled out as equally inadmissible. It was prejudicial evidence, given late, to which Ms Nguyen could not respond.
Ms Nguyen then contends, fourthly, that the Judge was wrong to deny her counsel, Mr Meyrick, the opportunity to question Customs officers who gave uncontested evidence at trial as to exhibits secured on her arrest about the conflict between them and Customs Officer Swann at the pre-trial hearing as to the arrest. Those circumstances again became relevant immediately when Customs Officer Swann gave her unexpected evidence, and went to her credibility and reliability.
Fifthly, Ms Nguyen contends, the Judge was wrong to deny Mr Meyrick the opportunity to put to the senior Customs officer, Mr Joy, that the owner of the address at which she was staying at the time of her arrest, or the owner’s son, each of whom had suggestive relevant criminal convictions, could have planted the boxes of pseudoephedrine-based tablets found in her bedroom.
On her appeal against sentence, Ms Nguyen contends the Judge was wrong to deem her to be a principal offender. At most she could only ever have been a party. Consequently, his starting point of four years and three months’ imprisonment was excessive. At most it should have been two years. Secondly, she contends, the 15 per cent discount that the Judge gave her for the systemic delay until her trial was manifestly inadequate.
Ms Nguyen’s appeal was filed out of time, and she needs an extension of time. As to that there is no issue, and we extend time accordingly.
Crown case
The Crown’s case at trial, that Ms Nguyen was as responsible as Mr Tran for the eight importations, and that they differed only as to the roles they played, had a number of strands. The first was that Ms Nguyen and Mr Tran were recorded together on camera attempting, without success, to collect one of the packages at a Courier Post depot.
The second strand in the Crown’s case was that, even though Ms Nguyen was not with Mr Tran on 5 August 2011, when he collected the last three packages from the depot, she was equally implicated. Immediately after Mr Tran and the two young women who were with him collected those three packages they went to Ms Nguyen’s address, at which Mr Tran may also have been staying, and they collected her. Customs and police officers arrested them and searched the car and the address under warrant as all four left the address.
Ms Nguyen was charged with possessing two of the three packages just collected, one still in the back of the car, in a backpack apparently belonging to Mr Tran (as to which she was acquitted), and another, divided into two, in her bedroom (as to which she was convicted). In her bedroom, two of the boxes of tablets removed were found in a black leather handbag, which Ms Nguyen accepted was hers. Three were found in a storage unit amongst her belongings.
The third strand in the Crown’s case was that Ms Nguyen was completely implicated by text messages retrieved from the cellphone she was said to have mostly used (that referred to by Customs Officer Swann in her challenged evidence). The Crown contended the texts demonstrated that she knew to whom the packages were addressed and their addresses. She knew equally that the packages contained pseudoephedrine-based tablets (in the texts she discussed the number of pills, selling pills, and making money).
The fourth strand in the Crown’s case was that the tablets imported had been purchased as medicines in Vietnam by Ms Nguyen’s mother, with whom Ms Nguyen had been in cellphone contact, at times coinciding with the eight consignments. Yahoo chat logs retrieved from on a computer also seized, which in all likelihood belonged to Mr Tran, confirmed that he too had contacted Ms Nguyen’s mother in that way, as well as by phone.
The fifth strand in the Crown’s case was that, between April and August 2011, Ms Nguyen sent to her mother five money transfers totalling $64,000, and contacted her mother each time to confirm they had been made. Mostly, they were made within days of the arrival of consignments and, on the Crown’s case, they derived from sales of tablets already made and were to pay for more consignments.
The jury, according to its verdict, accepted the Crown’s case in large part. It found that Ms Nguyen shared responsibility with Mr Tran for importing five of the eight packages, for which he had accepted responsibility, and thus that she shared responsibility for importing into New Zealand almost two-thirds of the 30,000 tablets imported.
First two grounds: Mr Tran’s evidence
If Ms Nguyen had gone to trial before Mr Tran had completed his sentence, and before he was deported on 15 October 2013, she would have been able to call him as a witness to confirm that, as she still contends, even though she had helped him she at no stage knew that the packages contained pseudoephedrine-based tablets.
The issue arising on Ms Nguyen’s first two grounds of appeal is whether Judge Hastings was correct in his ruling at the second pre-trial hearing, which concerned the systemic delay Ms Nguyen had suffered before the case was tried, when he held that she could not rely at her trial on the evidence Mr Tran had given at the first pre-trial hearing. He held that evidence would be unreliable hearsay and its admission would not constitute a proper remedy proportionate to the delay she had suffered.
Mr Tran’s evidence
The effect of Mr Tran’s evidence at the first pre-trial hearing was that he was solely responsible for the tablets imported and that, while Ms Nguyen had helped him, she had been unaware of what he was importing and why, even as to the package he opened in her room on the day of their arrest.
Mr Tran then said that he had opened that package while Ms Nguyen was in the bathroom and that when she came back, he had just discovered that it did not contain what he had expected (he must have seen the substituted tablets). He then immediately said that they all had to leave. Mr Tran was asked “did you show her the parcels?” He said:[3]
She, she did not know what was in the parcel. After I spoke to her I took the parcel and left the room to hide the parcel and she asked me what was happening, I got angry, I got angry and said “Don’t ask, be quickly, please.” Yeah, that’s all.
Judge Hastings’ ruling
[3]R v Nguyen, above n 2, at [6].
Judge Hastings began by saying that this evidence could only be hearsay evidence at Ms Nguyen’s trial if introduced in Mr Tran’s absence, and that to be admissible it had to be relevant, made in circumstances providing reasonable assurance it was reliable and not otherwise inadmissible.[4]
[4]Evidence Act 2006, ss 17 and 18.
First, the Judge said, that evidence was only as to what Mr Tran believed Ms Nguyen knew, not as to what she actually knew. But Mr Tran’s wider evidence might entitle the jury to infer that she did not know what the package contained and, that being so, it was potentially relevant. The issue was whether it was reliable and otherwise admissible.
Secondly, the Judge said the effect of Mr Tran’s evidence was that Ms Nguyen had a very limited chance in her bedroom to see what was in the package and that she was the only one amongst them who did not later understand why they were arrested. Her English was too limited.
This evidence, the Judge held, said little, if anything, about what Ms Nguyen knew about the contents of the package, when it was imported and collected from the depot. It went rather to whether she consciously shared possession of the tablets in the package with Mr Tran. Even then it was indirect evidence and suffered from inconsistencies. The passage of time between the event and Mr Tran giving the evidence might also have had an impact.
Thirdly, the Judge concluded, Mr Tran’s evidence was insufficiently reliable to be admitted as hearsay evidence, in part because he and Ms Nguyen had been in a relationship and he had a natural instinct to protect her, but ultimately because his evidence was inconsistent with what he told Customs officers on 12 June 2013, when he was in custody.
According to the Customs officers’ job sheet, Mr Tran told them that when he and Ms Nguyen began importing the tablets, which are sold in Vietnam to alleviate colds, they did not know they contained a prohibited drug, pseudoephedrine. They only discovered that when watching Border Patrol. They then continued to import them because they did not have much money. Ms Nguyen, he said, was not to be blamed. She had only done what he had asked of her. Without questioning him, she had looked after the tablets and made the payments to her mother.
Fourthly, the Judge said, if Ms Nguyen had been able to call Mr Tran to give evidence, the Crown could have put that later statement to him. It followed equally, therefore, that Mr Tran’s evidence at the first pre-trial hearing could not be admitted at Ms Nguyen’s trial standing alone. That would be unfairly prejudicial to the Crown, which relied on Mr Tran’s later qualifying statement.
Fifthly, the Judge concluded, that remained the case even when one took into account that there had been undue, although not egregious, delay until trial; a delay he nevertheless held to border on the shocking. It could not, he held, be a proportionate remedy to that delay to allow Ms Nguyen to rely on Mr Tran’s evidence standing alone, because that would “condone misleading the jury with unreliable evidence”, and create “an uneven playing field”.[5]
[5]R v Nguyen, above n 2, at [43].
The only basis, the Judge said, on which Mr Tran’s evidence could be placed before the jury would be if it were accompanied by his later statement and that would have to be by consent. As to that, he added, he could not see how it would assist Ms Nguyen.
Conclusions
We are satisfied that, on the then state of the case before trial, Judge Hastings was correct. We see no merit in either of the grounds on which Ms Nguyen now contends that Mr Tran’s evidence ought to have been admitted at her trial as reliable hearsay because his later statement to the Customs officers was unreliable.
Ms Nguyen’s first point, that Mr Tran’s statement to the officers was made maliciously after she refused to send him money in prison, was to be advanced in an affidavit, which the Crown was to oppose as neither fresh nor cogent. She has not sworn that affidavit and we cannot place reliance on the draft we have. Even if she had made the affidavit her opinion would not stand scrutiny when set against Mr Tran’s statement to the officers. He then showed no sign of malice towards her. He was still attempting to shield her.
Ms Nguyen’s second point, that Mr Tran’s later statement was unreliable (and so could not cast doubt on his evidence) because even the Customs officers disbelieved what he told them, is equally speculative. They did resist disclosing it to her before trial on the ground that to do so it might put Mr Tran at risk; a baseless concern, as Judge Mathers found in October 2013 when she required it disclosed. But that says nothing about what they thought about the truth of the statement and that is irrelevant anyway. That was a jury issue.
Finally, even supposing that Mr Tran’s evidence had gone to the jury uncomplicated by his later statement, his clear purpose was to shield Ms Nguyen. We are satisfied it would not have been considered credible, when set against the Crown’s case against Ms Nguyen, which implicated her in the ways we have identified.
In short, Judge Hastings’ reasoning remains undisturbed. Mr Tran’s evidence had to be deemed unreliable, when set against his later statement, and could only ever have gone before the jury with that statement. Undue delay of itself could not have justified its admission without the statement. That, as the Judge said, would have been a quite improper remedy.
Third ground: Customs Officer Swann’s evidence
Ms Nguyen’s third ground of appeal concerns the issue, critical to the Crown’s case and her defence, whether she owned or was primary user of the cellphone used in the text message exchanges, which the Crown attributed to her; a cellphone she denied ever owning or using.
Customs Officer Swann gave evidence twice at Ms Nguyen’s trial and, when she was re-examined the second time she gave this evidence:
QMy friend asked you questions about conducting a search of Ms Nguyen at 50 Omana Road and you confirmed that you didn’t find a phone on her. Did you ask her any questions at the time?
A Yes I did.
Q What questions?
AI asked her, using the interpreter, where her 850 number was in her phone and her phone, to which she told me she had sold.
Immediately after Customs Officer Swann gave that last answer, Mr Meyrick contended that the trial should be aborted, because that answer, which carried the implication that Ms Nguyen had admitted to owning the cellphone, was inadmissible, untruthful and highly prejudicial. Ms Nguyen could not at that point in the trial challenge it.
In declining that application Judge Ronayne gave five succinct reasons for his decision, which bear repeating:[6]
(i)No objection was taken pre-trial to the evidence about which the complaint is made. This, in itself, is not determinative.
(ii)The accused, being only partway through her evidence in chief, can comment on the evidence and give her own version of events.
(iii)No objection was taken by Mr Meyrick at the time the evidence in question was led. This is also not, in itself, determinative.
(iv)The Crown has indicated that it has no objection to Ms Swan[n] or any other witness being recalled at the Court’s direction and ordered to be cross-examined about this specific evidence.
(v)In all the foregoing circumstances, it is difficult to see how Ms Nguyen’s rights to a fair trial have been affected.
[6]R v Nguyen DC Auckland CRI-2011-092-16706, 16 December 2014 at [9].
In those five reasons, Ms Nguyen contends, the Judge failed to take into account that the answer Customs Officer Swann gave was not recorded in any disclosed job sheet or statement. Nor was it evidence that the officer gave at the first pre‑trial hearing concerning the admissibility of Ms Nguyen’s statement on arrest. Had it been given then, she would have challenged it and it would have been excluded. The Judge also failed to recognise, Mr Nguyen contends, that once that evidence was given she could not begin to rebut it.
This submission is without merit. It is irreconcilable with the record of the first pre‑trial hearing. As the Judge recognised in the first of his five reasons, Customs Officer Swann did give evidence at that hearing concerning her conversation with Ms Nguyen about the cell phone; and she did so without any objection being taken.
In her evidence-in-chief (her witness statement from which she read without Mr Meyrick objecting) Customs Officer Swann said this:
During my initial conversations with the defendant Nguyen we were able to converse in English and hold a conversation. It was not until I asked her where her mobile phone was that had the number ending 850 that I needed Customs Officer Nguyen to assist with the translation on my behalf. It was established that she had sold her phone.
At that hearing Ms Swann also confirmed that the mobile phone ending 850 was relevant because prior to the controlled delivery Mr Tran’s telephone number had been identified and “there [were] corresponding text messages with a female named Bebe … and that number ending 850. From that text data we could see that those two persons were organising addresses for packages to be sent to.”
When Customs Officer Swann was re-examined at the trial she simply recapitulated that earlier evidence. Furthermore, after Mr Meyrick elected not to question her about it, the Judge neutralised the impact of the officer’s answer when he said this in his directions to the jury:
You may not really be much assisted by the remark about selling her phone she [is] said to have made to Ms Swann at about the time of her arrest, because there is no real evidence as to which phone she was referring to at the time.
Fourth ground: refusal to allow cross-examination
Ms Nguyen’s fourth ground of appeal is related to her third ground. It is equally without merit.
Ms Nguyen contends, fourthly, that the Judge was wrong to deny Mr Meyrick the ability to challenge Customs Officer Swann’s credibility and reliability by
cross-examining the other Customs officers, who gave evidence at her trial, about the conflict between them and Customs Officer Swann in the evidence they gave at the first pre-trial hearing concerning Ms Nguyen’s arrest.As the Judge held, and as Mr Meyrick accepted on this appeal, the circumstances of Ms Nguyen’s arrest, while relevant to the issue at that first pre-trial hearing, were irrelevant to the issues at trial. He was attempting to challenge Customs Officer Swann’s credibility and reliability, by relying on what had become a collateral controversy.
Furthermore, the challenge Mr Meyrick wished to make carried this irony. At the pre-trial hearing Ms Nguyen had contended that the only Customs officer who told the truth was Customs Officer Swann. Yet at the trial Mr Meyrick wished to discredit her by relying on evidence elicited from the officers whom Ms Nguyen had challenged as unreliable at the first pre-trial hearing.
Fifth ground: other suspects
There is nothing in Ms Nguyen’s final ground of appeal that she was deprived of the ability to establish before the jury that the owner of the address and her son might have planted the third package in her room, because they had suggestive convictions, and the opportunity to do so. The Judge was right to rule that out as entirely irrelevant.
Ms Nguyen’s defence at trial was, as Mr Meyrick said in opening, that she had been cynically co-opted by her then partner, Mr Tran, without knowing what he was importing and why. That indeed is why she wished to call Mr Tran to give evidence that in her bedroom he had opened the package from which the five boxes found there derived, without her being aware of its contents. The owner of the address and her son never figured.
Sentence appeal
On sentence, Ms Nguyen contends firstly that in holding her to be a principal offender, as responsible for the importations made as Mr Tran, the Judge overstated her role. It was peripheral at most. As to that we need only say that on the Crown case, which we have outlined and find compelling, and as the Judge found on sentence, Ms Nguyen was as involved as Mr Tran, to the extent of the jury’s verdict.
That being so, the Judge was obliged to take a starting point set against that taken for Mr Tran, whose sentence had been affirmed by this Court on appeal.[7] He had then to reduce that starting point to hold Ms Nguyen accountable for five, not all eight packages. That is what he did. His final starting point, broadly 75 per cent of that taken for Mr Tran, was proportionate. The two-year starting point Ms Nguyen contends for would have been manifestly inadequate.
[7]Tran v R [2012] NZCA 441.
Finally, the 15 per cent discount the Judge gave Ms Nguyen for the systemic delay before her trial was, we consider, also proportionate, especially when set against the discounts she obtained for her youth, her time on bail, her lack of previous convictions and her previous good character and prospects of rehabilitation. In all Ms Nguyen received a 40 per cent discount and that could be considered generous.
Result
For those reasons we grant Ms Nguyen an extension of time to appeal both her conviction and her sentence but we dismiss her appeal.
Solicitors:
Crown Law Office, Wellington for Respondent